(CN) — The Environmental Protection Agency must revise its plan to reduce Texas air pollution that blows to other states despite a court order that let the plan take effect, a federal judge ruled.
The Clean Air Act's "good neighbor" provision requires the EPA and states to curb smokestack emissions that make it harder for downwind states to meet federal air pollutant standards.
The rule is aimed at sulfur dioxide and nitrogen oxides that can react in the atmosphere and bind into fine, toxic particles that can travel great distances in the wind, according to the EPA.
The Sierra Club sued the EPA in the District of Columbia in September 2010, seeking to compel the agency to produce a federal implementation plan for Texas' interstate air pollution, after the agency missed a May 25, 2007, deadline.
In response, the EPA rolled out the Cross-State Air Pollution Rule in August 2011, which included a federal plan to address air pollutants blown from Texas to neighboring states.
The rule is meant to reduce emissions from 23 upwind states' coal and natural gas-fired power plants.
It set off a flurry of litigation in the D.C. Circuit, which handles appeals of federal agency rules, as numerous states and power plant operators sued the EPA, claiming the pollution reductions mandated were greater than necessary to meet downwind states' standards.
The D.C. Circuit consolidated the cases. The appeals court stayed the good-neighbor provision in 2011, holding that the EPA erred by rejecting several states' plans to comply with the rule before it told them how much emissions they were supposed to cut.
The EPA appealed to the U.S. Supreme Court, which reversed and remanded. The high court found that the Clean Air Act doesn't mandate that states get a second chance to file an interstate air pollution-control plan after the EPA sets their emission limits.
The D.C. Circuit lifted the stay and the rule took effect in January 2015.
The appeals court revisited the rule in July 2015, however, and found the sulfur dioxide limits the EPA set for Texas were illegal because they required the state "to reduce emissions by more than the amount necessary to achieve attainment in every downwind state to which it is linked," according to the appellate court's ruling in EME Homer City Generation LP v. EPA.
The D.C. Circuit remanded the rule to the EPA to revise it, but did not vacate it out of concern that doing so would disrupt a cap-and-trade program the agency started in 2003, which it credits for reducing nitrogen dioxide emissions in the eastern United States.
Lung-scarring ozone forms when nitrogen dioxide and volatile organic compounds like benzene, which are emitted by cars and factories, cook in sunlight on hot summer days.
The EPA moved to dismiss Sierra Club's lawsuit for lack of jurisdiction. The agency argued the environmental group's claim that the agency failed to produce a federal plan to regulate Texas' interstate air pollution is moot because it did, in fact, offer such a plan, even if part of it was rejected by the D.C. Circuit.
U.S. District Judge Colleen Kollar-Kotelly rejected that argument Tuesday.
"Defendants concede that the D.C. Circuit held as 'invalid' the very part of the rule that, according to defendants, satisfied the EPA's duty underlying plaintiff's [small particulate matter] interstate transport claim," Kollar-Kotelly wrote in the 10-page ruling.
The judge added, "Defendants attempt to sidestep that concession by pointing out that the D.C. Circuit remanded the rule to the EPA, without vacatur, leaving the rule in effect while the EPA remedies the issues identified by the D.C. Circuit. The court does not find defendants' position convincing."
Kollar-Kotelly ordered the EPA to file a "valid Clean Air Act 'good neighbor' federal implementation plan for Texas" by July 29.
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