US EPA seeks rehearing of DC Circuit panel ruling against CSAPR
Washington (Platts)--5Oct2012/1154 am EDT/1554 GMT
The US Environmental Protection Agency on Friday asked a federal court to
rehear its case for the Cross-State Air Pollution Rule after a three-judge
panel this summer issued a split decision vacating the regulation, which is
aimed at cutting interstate emissions from coal-fired power plants.
The EPA is seeking a rehearing en banc that would involve eight judges
serving on the US Court of Appeals for the District of Columbia Circuit.
EPA, in its petition to the full court, said the three-judge panel's
decision against CSAPR was "inconsistent with circuit precedent" in terms of
the agency's authority under the Clean Air Act to issue federal
implementation plans to states to carry out the rule.
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The panel's "significant contribution" analysis also "misapplies"
certain requirements of the law in its rejection of how EPA determined the
proportion of upwind states' contribution to downwind states' failure to meet
national ambient air quality standards and the decision ignored "settled
circuit precedent" in doing so, the agency said.
Overall, the panel's decision against the CSAPR "upends the appropriate
relationship of the judicial, legislative, and executive branches of
government by rewriting clear legislation, ignoring explicit statutory
jurisdictional limits, and stepping into the realm of matters reserved by
Congress and the courts to the technical expertise of administrative
agencies," EPA said in its petition for rehearing.
The panel August 21 ruled 2-1 to vacate and remand the cross-state
rule, which attracted dozens of challenges from industry and states. In its
decision, EME Homer City v EPA, the court further directed that the 2005
Clean Air Interstate Rule remain in force until the agency came up with a
It was anticipated that EPA would seek a rehearing given the lengthy and
detailed dissent written by Judge Judith Rogers, who noted that the majority
opinion ruled on issues not properly brought before the court and on the
federal implementation plan issue since its 60-day period for filing suit had
The majority opinion concluded CSAPR violated the Clean Air Act in two
key areas -- the "good neighbor" provisions to address upwind states' air
pollution affecting downwind states, and EPA's installation of federal
implementation plans before allowing states to develop their own plans for
carrying out the new rule. Judge Brett Kavanaugh wrote the majority opinion
with Judge Thomas Griffith siding.
The cross-state rule, which never took effect, would have covered coal
and oil plants in 28 states in the East, South and Midwest. EPA used a
region-wide cost-per-ton threshold for the three pollutants under the rule:
sulfur dioxide, annual nitrogen oxide and ozone-season NOx. Both NOx
thresholds were set at $500/ton. SO2 states were divided into two groups:
Group 1 had a $2,300/ton threshold and Group 2 had a $500/ton threshold.
The cross-state rule was crafted to replace CAIR, an interstate
emissions rule with more flexible trading that was developed during the
George W. Bush administration. The DC Circuit remanded CAIR in 2008 after it
was challenged by industry and states, but allowed that rule to stay in
place until EPA worked on a successor.
--Cathy Cash, firstname.lastname@example.org
--Edited by Valarie Jackson, email@example.com