Court Lifts Stay of EPA’s Cross-State Air Pollution Rule

on November 03, 2014 at 9:00 AM


A federal appeals court has lifted the stay of EPA’s Cross-State Air Pollution Rule which addresses interstate transport of air pollution that affects downwind states’ ability to meet air quality standards.

CSAPR States

On October 23, 2014, the U.S. Court of Appeals for the District of Columbia Circuit granted the Environmental Protection Agency’s (EPA) motion to lift the stay of the Cross-State Air Pollution Rule (CSAPR).  The ruling follows the Supreme Court’s April decision (EPA v. EME Homer City Generation, L.P.), which approved EPA’s CSAPR and rejected petitions supporting a stay pending judicial review.

The EPA promulgated CSAPR in July 2011 to meet the Clean Air Act’s “good neighbor” provision which requires EPA and states to address interstate transport of air pollutants that affect downwind states’ ability to attain and maintain National Ambient Air Quality Standards (NAAQS).  The CSAPR requires state utilities – which contribute significantly to downwind states’ failure to meet NAAQS – to reduce emissions of nitrogen oxides (NOX) and sulfur dioxide (SO2) responsible for fine particulate matter (PM2.5) pollution.  The CSAPR will replace the 2005 Clean Air Interstate Rule (CAIR) that the D.C. Circuit Appeals Court ordered EPA to revise in 2008.  EPA aligned CSAPR’s original compliance deadlines with those of downwind states whose attainment and maintenance it was designed to address.

States and utilities — whose upwind emissions that EPA documented as causative for downwind states’ pollution issues — petitioned the Appeals Court to review CSAPR and moved for a stay pending judicial review, citing inability to comply with the initial compliance deadlines.  In December 2011, the Appeals Court ordered a stay pending review and briefing on merits, and directed EPA to continue administering CAIR pending resolution of the petitions.  Subsequently, in August 2012, the Appeals Court rendered a decision on merits vacating and remanding CSAPR on grounds that EPA exceeded its authority by placing too much emphasis on cost rather than air quality factors in allocating responsibility for multiple upwind state contributors; and that EPA lacked statutory authority to promulgate Federal Implementation Plans without first identifying each state’s pollution contribution and giving initial opportunity to implement reductions through State Implementation Plans (SIPs).

In April, the Supreme Court granted EPA’s petition for writ of certiorari, reversing the August 2012 merits decision and held that the Clean Air Act does not require EPA to give a second opportunity for states that missed the SIP submission deadline and that EPA’s use of cost-effectiveness in determining states’ obligations is permissible, workable, and equitable interpretation of the “good neighbor” provision.

In June — based on the Supreme Court decision upholding EPA’s approach to implementing CSAPR – EPA moved the Appeals Court for an order lifting the stay of CSAPR and extending the CSAPR compliance deadlines by three years, so that Phase I emissions budgets apply in 2015 and 2016 (instead of 2012 and 2013) and Phase 2 budgets apply in 2017 (instead of 2014 and beyond).  EPA explained that lifting the stay would ensure that important health benefits are not delayed, help downwind states achieve and maintain NAAQS requirements, and allow EPA to implement the replacement to CAIR which the Appeals Court invalidated and ordered to replace.

Originally published by EnerKnol.

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