Supreme Court Agrees to Review Vacated Cross-State Pollution Rule

The Supreme Court today granted a petition by health and environmental groups, 15 states, and the Environmental Protection Agency (EPA) and agreed to review the Cross-State Air Pollution Rule (CSAPR), a Bush-era rule that a federal appeals court had previously vacated.

In its next term, the high court will review the D.C. Circuit’s landmark August 2012 decision by the federal court’s deeply divided three-judge panel that invalidated CSAPR. The Supreme Court today said the petition for review is "granted limited to the questions presented by the petition."

The EPA’s July 2011–finalized CSAPR would have required, by January 2012, 3,632 electric generating units at 1,074 coal-, gas-, and oil-fired facilities in 28 states to reduce nitrogen oxide (NOx), sulfur dioxide (SO2), and particulate emissions that cross state lines and contribute to ground-level ozone and fine particle pollution in other states. But the D.C. Circuit stayed that rule just two days before it was set to go into effect, ordering the EPA to continue administering the 2005-promulgated Clean Air Interstate Rule (CAIR) until a final decision could be made on the merits of CSAPR.

The D.C. Circuit then issued a landmark ruling on Aug. 21, 2012, that vacated CSAPR, finding that it violated federal law. The deeply divided three-judge panel of the federal court ruled in its 2-1 decision 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, and that the EPA violated the Clean Air Act by imposing federal implementation plans (FIPs) to implement emission reduction obligations at the state level. Judge Judith Rogers issued a lengthy dissent arguing that Judge Brett 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.”

The Aug. 21 order stemmed from 45 separate appeals from several utilities, industry, environmental groups, and 15 states. Three petitions were subsequently filed asking the full court for a rehearing of the case, EME Homer City Generation v. EPA . One was filed by the Environmental Defense Fund (EDF), joined by the American Lung Association, Clean Air Council, Natural Resources Defense Council, and Sierra Club. A coalition of 15 states and cities (North Carolina, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New York, Rhode Island, Vermont, Baltimore, Bridgeport, Chicago, New York City, Philadelphia, and Washington, D.C.), also filed for petitions of review en banc.

And on Oct. 5, 2012, the EPA also filed for a petition for an en banc rehearing, arguing that the court’s decision was inconsistent with court precedent and that the court lacked jurisdiction to make its ruling. In its order on Jan. 24, however, the D.C. Circuit denied petitions for a full court rehearing. No judges dissented. "A majority of the judges eligible to participate did not vote in favor of the petitions," the one-page order said.

The EPA told POWERnews in a statement today it was “pleased” with the Supreme Court’s decision to grant the agency’s petition to review the rule. However, it cautioned: “The Supreme Court’s decision to grant our petition is not a decision on the merits but instead a decision to review the case on the merits. As such, it does not alter the current status of the [CAIR] or the Cross-State Rule.”

CAIR remains in place at this time and “no immediate action from states or affected sources is expected,” the EPA said.

Sources: POWERnews, U.S. Supreme Court, EPA

Sonal Patel, Senior Writer (@POWERmagazine, @sonalcpatel)

NOTE: This story was originally published on June 27

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