Misguided D.C. Circuit Court Ruling Blocks Limits on Harmful Pollution from Power Plants

, Policy Director and Lead Economist, Climate & Energy | August 21, 2012, 12:02 pm EDT
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It was very disappointing to get news today that the D.C. Circuit court has vacated the cross state air pollution rule or CSAPR (also known as the Transport Rule) which was designed to limit emissions of SO2 and NOx from coal-fired power plants. The court ruling comes as a rude shock after the EPA worked so carefully and thoroughly to address all aspects of the rule and its impacts in accordance with the provisions of the Clean Air Act.

This is a ruling that will surely be challenged on behalf of states that are forced to bear the enormous public health burden of pollution from power plants in neighboring “upwind” states.

Reducing SO2 and NOx emissions is critical to decreasing soot and smog pollution, which causes numerous health problems like breathing difficulties, aggravation of asthma, and even premature death. These pollutants are often carried long distances by the wind; consequently some of the biggest health effects are seen in states thousands of miles away. Learn more.

CSAPR was designed as a market-based tool to reduce emissions in a least-cost, flexible manner. Its public health benefits, including avoiding 13,000 to 34,000 premature deaths each year, would far outweigh costs.

Vacating the rule also adds fresh uncertainty to the power market, where power plants have been moving ahead with steps to clean up dirty coal plants and ensure timely compliance with Clean Air Act standards.

Judge Rogers issued a spot-on sharply worded dissent to the majority ruling:

“To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act (“CAA”), and this court’s settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did. The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress’s vision of cooperative federalism between the States and the federal government in implementing the CAA based on the court’s own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court’s precedent on which the Environmental Protection Agency (“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 ruling does still leave the older Clean Air Interstate Rule (CAIR) rule in place and the EPA will continue to use that to enforce reductions in SO2 and NOx emissions, although it remains an imperfect tool because it does not adequately protect public health in setting limits on the harmful pollution carried beyond state boundaries.

I believe strongly that the court got this wrong. The ruling should immediately be appealed and will most likely be overturned once a careful reading of the Clean Air Act’s provisions is undertaken. But meanwhile this delay will impose a costly burden on the health of Americans.

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