Small government champions won victory in last week’s EPA ruling

By TJ Mayes

Those of us who are worried that certain federal government agencies have been exceeding the authority vested in those agencies by Congress won a small victory last week. On Aug. 21, the U.S. Court of Appeals for the DC Circuit issued a widely-anticipated ruling on the controversial Cross-State Air Pollution Rule (CSAPR) finalized by the Environmental Protection Agency last August.

The regulation would have reduced emissions from 28 upwind states’ coal- and gas-fired power plants. The ostensible purpose of the rule was to limit the adverse effects on air quality in one state caused by sulfur dioxide and nitrous oxides emitting from another state. This purpose stems from what is known as the “good neighbor” provision of the Clean Air Act.

Several states and industry groups petitioned the Court to examine the rule. A stay was issued in January to prevent the EPA from enforcing the rule pending the outcome of the litigation.

The Clean Air Act creates a complex scheme in which federal and state governments play prominent roles in policy implementation. Usually, the EPA sets quantitative air quality standards and the state governments are tasked with implementing a plan to achieve those standards.

The Court struck down CSAPR on two grounds. The first was that when the EPA promulgated the regulation, it laid down federal implementation plans that the states were required to follow in their air quality efforts. This was a departure from its prior federalism-based approach as well as an administrative overreach.

The most compelling reason the court struck down the rule was the extent to which the EPA exceeded its statutory authority under the Clean Air Act. The Act only allows the EPA to limit emissions in upwind states to the extent that those states emit. The Court found that the EPA, however, “has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.”

The Court left the EPA’s Clean Air Interstate Rule (CAIR), a Bush Administration initiative also aimed at emission reduction, intact for the time being (CAIR will stay put until the EPA revisits CSAPR). The EPA also has the opportunity to redraft CSAPR or appeal the ruling to the Supreme Court.

Reaction to the ruling was unsurprising with environmental groups expressing disappointment and pointing to the effect air emissions will have on child asthma and similar health concerns. Conservative Republicans claimed victory, as attacking the EPA has become their favorite sport. Texas Attorney General Greg Abbott (Rick Perry’s heir apparent or possible 2014 primary challenger) tweeted that the “EPA overlords suffer[ed] another defeat to Texas.”

While the litigation will likely have an unsubstantial effect on the 2012 election, it does bring to the forefront (however briefly) several important issues: the age-old debate about the proper roles of state and federal governments; if climate change exists, if humans are to blame, and what policy options are available to meet the challenge without sacrificing economic security; and whether the Obama Administration is willing to sacrifice jobs to appease an important Democratic interest group (the environmental lobby).

It is unclear what the future of cross-state air quality controls will look like. As the court noted, that is a debate better suited for the halls of Congress. The DC Circuit Court, however, should be commended for not commenting on the policy merits of CSAPR, but for “calling balls and strikes” and striking the rule down on the legal merits.

T.J. Mayes is a regulatory attorney based in San Antonio. His practice focuses on public utilities, the environment, electricity markets, and campaign finance.

Posted by on August 29, 2012. Filed under Judicial. You can follow any responses to this entry through the RSS 2.0. You can leave a response or trackback to this entry

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