• Jennifer Heywood

Environmental Protection Agency’s Cross-State Air Pollution Rule

On April 13, 2012, the U.S. D.C. Circuit Court of Appeals heard arguments regarding the Environmental Protection Agency’s (“EPA”) Cross-State Air Pollution Rule (“CSAPR”).

In December 2011, Nebraska participated in a lawsuit halting the implementation of the rule. Nebraska was joined by six states on the petition for review including Texas, Alabama, South Carolina, Florida, Oklahoma, and Virginia. A number of states also filed separate motions challenging the rule’s implementation.

But, Nebraska and the other challengers to the CSAPR may have a “significant problem” because one of their key arguments may not have been raised during the rule’s public comment period, a federal judge said April 13 (EME Homer City Generation LP v. EPA, D.C. Cir., No. 11-1302, oral arguments 4/13/12).

Petitioners may only litigate issues they brought to the agency’s attention in comments, Judge Thomas Griffith of the U.S. Court of Appeals for the District of Columbia Circuit said during oral arguments over the CSAPR.

Attorneys representing power plants and states that are challenging the rule have said the court should vacate the rule, based on EPA’s methodology for determining which states make a “significant contribution” to downwind air quality problems.

However, the petitioners’ comments do not appear to have addressed EPA’s methodology for determining a “significant contribution,” Judge Griffith said.

EPA issued the final rule in July 2011. It requires 28 states in the East, Midwest, and South to reduce power plant emissions of nitrogen oxides and sulfur dioxide that cross state lines (76 Fed. Reg. 48,208; 131 DEN A-6, 7/8/11). The rule, which affects 3,631 fossil fuel-fired electricity generating units, including 990 coal-fired units, is intended to help downwind states meet national ambient air quality standards for ozone and fine particulate matter.

CASPR was mandated by the EPA to address a theoretical compliance issue in Milwaukee, Wisconsin. The agency’s rule forces Nebraska’s power plants to cap emissions by 1% in order to reduce the potential impact that may be caused in areas downwind. However, the actual change in air quality resulting from the multi-million dollar modifications would be scarcely measurable and is currently unknown.

The judges are expected to issue their decision in the summer or fall.

The first phase of the cross-state rule was set to take effect January 1, 2012, but he D.C. Circuit on December 30, 2011, stayed the rule while the legal challenges play out.

The rule is meant to replace another rule issued in 2005 called the Clean Air Interstate Rule, which the D.C. Circuit remanded to EPA in 2008. The court said it did not ensure that upwind emissions reductions would be sufficient to help downwind states meet air quality standards.

However, the court allowed the Clean Air Interstate Rule to remain in place until a replacement program is implemented, and it remains in effect today.

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