Losses Keep Mounting for EPA in Court; CSAPR Vacated
By: James Valvo
In a stunning defeat for the Obama administration’s EPA, the DC Circuit Court of Appeals today threw out the Agency’s so-called Cross-State Air Pollution Rule (CSAPR). The Court castigated the EPA for exceeding its statutory authority and attempting to take over the Clean Air Act’s “cooperative federalism” approach to air pollution. A process where “both the Federal Government and the States play significant roles,” the Court reminded. This decision comes on the heels of a recent ruling in the Fifth Circuit finding that EPA transgressed the same cooperative federalism principle when it tried to invalidate a 16-year-old permitting plan the state of Texas was successfully using to meet its NAAQS requirements.
CSAPR is (was) a regulation that aims to control coal- and natural-gas fired power plant emissions that have the potential to drift across state lines. Since states have plans in effect to control air pollution within their boundaries, cross-state pollution can be a vexing problem for in-state regulators since they cannot reach across state borders to regulate. For this reason, the Clean Air Act authorizes EPA to engage on the cross-state issue.
However, today the DC Circuit Court of Appeals found EPA violated its statutory authority in two ways. First, the Agency attempted to force upwind states to bear too large of a burden for policing downwind states’ emissions. The Court found EPA cannot require an upwind source to “reduce emissions by more than their own significant contribution to a downwind State’s” emissions. EPA cannot force the upwind state to reduce emissions if that reduction is “not tied to how much the upwind State contributed to the downwind State’s air pollution problem.”
Second, EPA violated the Clean Air Act by not giving states an opportunity to resolve the cross-state issue through the statute’s state implementation plans (SIPs). Under the Clean Air Act, EPA is supposed to set standards and then states are supposed to find ways to meet those standards. Instead of following the statute, EPA stepped right in and “implement[ed] the required reductions … [with a] Federal Implementation Plan … By doing so, EPA departed from its consistent prior approach” to air regulations. The plan that EPA chose to use is essentially a cap-and-trade program, but with EPA doling out the emission allowances instead of letting the states resolve the issue. This approach didn’t pass muster with the Court.
This is not the first time EPA has failed to properly craft a cross-state rule. In 2008, the same DC Circuit didn’t allow EPA’s Clean Air Interstate Rule (CAIR) to stand because EPA improperly used cost formulas to justify its regulatory scheme. In that ruling, the Court said the Clean Air Act “gives EPA no authority to force an upwind state to share the burden of reducing other upwind states’ emissions … Each state must eliminate its own significant contribution to downwind pollution.” This is essentially the same violation of the statute that the Court found EPA violated in the now-vacated CSAPR. While EPA tries to stay within its statutory authority, CAIR remains in effect.
In addition to losing on CSAPR and the Texas SIP, EPA also took two body blows recently in court over its attempt to use the Clean Water Act to retroactively revoke the Spruce Mine permit and its attempt to levy huge fines on the Sackett family for home construction “too close” to a water source EPA wanted to regulate; the Court sided with commonsense on both of these decision. In contrast, EPA’s regulations of greenhouse gases from tailpipes, the Tailoring Rule and the greenhouse gas endangerment finding were recently upheld by the DC Circuit.