D.C. Circuit Greenlights CSAPR

The U.S. Court of Appeals for the District of Columbia Circuit ruled on Oct. 23 that the EPA can move forward with implementation of the Cross-State Air Pollution Rule (CSAPR) following the April ruling from the Supreme Court upholding most of the rule.

The D.C. Circuit had previously voided the rule in December 2011, but that decision was reversed by the high court, which held in a 6-2 ruling that the lower court had failed to give proper deference to the EPA’s interpretations in crafting the rule, and in doing so had read into the Clean Air Act elements not present in the statutory language.

On Thursday, the circuit court cleared the way for the EPA to proceed with implementation. The agency is still reviewing the Supreme Court decision to determine if any further administrative actions are necessary.

The decision does not bring the dispute to a final end, however. A few remaining challenges to the CSAPR are pending with the Supreme Court and are scheduled for consolidated oral argument in March 2015. These include a suit from the State of Texas arguing that the EPA does not have jurisdiction to include it in the CSAPR program.

The CSAPR has been highly controversial since it was first proposed by the EPA in 2008. The current rule, finalized in July 2011, requires more than 3,000 electric generating units at more than 1,000 coal-, gas-, and oil-fired facilities in 28 states to reduce nitrogen oxide (NO_x), sulfur dioxide (SO₂), and particulate emissions that cross state lines and contribute to ground-level ozone and fine particle pollution. According to EPA projections, the rule would cost about $800 million annually, but the nation would see $120 billion to $280 billion in annual benefits.

The first phase of the CSAPR is scheduled for implementation in 2015, with final implementation set for 2017.

—Thomas W. Overton, JD is a POWER associate editor.