In a landmark ruling that has been seen as a major victory for thermal generators, the U.S. Court of Appeals for the District of Columbia Circuit on Tuesday vacated the Environmental Protection Agency's (EPA's) Cross-State Air Pollution Rule (CSAPR), finding that it violated federal law. The EPA must now continue implementation of the Clean Air Interstate Rule (CAIR) until it can promulgate a replacement, which likely will not happen until at least 2014, industry analysts said.
The court found in its Aug. 21 decision
that the EPA had exceeded its authority, granted to it by Congress, in two respects. First, the court held that the EPA could not force states to reduce their emissions by more than an amount determined to be their "significant contribution" to nonattainment in other states. The Clean Air Act did not give the EPA a "blank check ... to address interstate pollution on a regional basis without regard to an individual upwind State's actual contribution to downwind air quality," the court ruled. This meant the court found that "EPA imposed massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text," said Katerina Milenkovski, an attorney with Steptoe & Johnson.
Second, and perhaps critically, the court held that the EPA violated the Clean Air Act by imposing federal implementation plans (FIPs) to implement emission reduction obligations at the state level, "usurping the state’s ability to identify and make such reductions on its own," said Milenkovski. Under the Clean Air Act, the states are the "first implementers" of federal requirements, and the EPA must give them a reasonable time to implement new emission reduction obligations imposed by the EPA, the court ruled.
“Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here,” the court ruled. Noting that Congress could easily alter the Clean Air Act to allow the CSAPR rule to withstand challenge, the court said, “unless and until Congress does so, we must apply and enforce the statute as it’s now written.”
The court's decision was expected nearly a month ago. On Tuesday, the three-judge panel at the D.C. Circuit was deeply divided. Judge Brett Kavanaugh wrote the opinion for the court, joined by Judge Beall Griffith. Judge Judith Rogers strongly dissented, arguing Judge Kavanaugh’s opinion represented a “trampling on this court’s precedent on which the [EPA] was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court.”