4 The record articles

CSAPR: The Latest U.S. EPA Casualty

Posted: August 27th, 2012

Author: All4 Staff 

In a continuing trend, the DC Circuit Court (Court) handed U.S. EPA yet another loss in EME Homer City Generation LLC v EPA.  The casualty this time: the Cross States Air Pollution Rule (CSAPR).  In a 2-1 decision, CSAPR was vacated because the Court found that U.S. EPA exceeded its authority and violated the Clean Air Act (CAA) by imposing massive emissions reduction requirements on upwind states in a manner incompatible with the language of the law.  The Court also found that U.S. EPA was in the wrong by not allowing the states to establish their own plans to implement the required reductions within their states.

CSAPR was promulgated in August 2011 and required 28 upwind states to reduce interstate transport of sulfur dioxide (SO2) and nitrogen oxide (NOx) emissions from their power plants (i.e., electric generating units (EGUs)).  CSAPR was developed pursuant to the CAA 110(a)(2)(D)(i) “good neighbor” provision, which requires upwind states with “significant contribution” to reduce emissions to downwind states.

This isn’t the first time the Court has been involved with U.S. EPA’s transport rule(s).  The original Clean Air Interstate Rule (CAIR) and CAIR Federal Implementation Plans (FIPs) were promulgated in May 2005 and April 2006, respectively.  The Court found both to be unlawful and vacated them in July 2008. A few months later, in December 2008, the Court had a change of heart and remanded both back to U.S. EPA.  In July 2010, U.S. EPA proposed a repackaged transport rule as the “Clean Air Transport Rule” which was later promulgated as CASPR in August 2011.  Immediately, companies, trade groups, associations and environmental groups took sides and a plethora of legal filings followed; some supporting U.S. EPA, others against.  CSAPR was stayed in December 2011.

With the vacature of CSAPR, at least for the near term, CAIR will remain in effect.  So, what are the implications of the vacature and what other questions does it raise?

  • How will the vacature impact EGU operational plans and future compliance strategies over the next few years?
  • Will U.S. EPA appeal the Court’s ruling?
  • Per the Court’s ruling, how will U.S. EPA first determine each states exact “significant contribution?”  And, with states developing their SIPs to address the emission reductions, how will this elongate the implementation process? 
  • How will other programs and rules such as National Ambient Air Quality Standards (NAAQS) compliance strategies, state implementation plans (SIPs), and Best Available Retrofit Technology (BART), to name a few, that rely upon CSAPR be affected?
  • Will states use other CAA provisions to crack down on upwind contributors?  For example, New Jersey used CAA Section 126 provisions to petition Pennsylvania to curb emissions from a power plant.  Will EPA’s acceptance of New Jersey’s petition be subject to further legal challenges and at risk of being overturned?

These and other questions and additional implications will likely surface in the coming weeks and months.


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