Cross-State Air Pollution Rule: Latest Developments

Posted on 9/11/2012 by James Griffin

On August 21, 2012, the District of Columbia circuit of the United States Court of Appeals remanded the Cross State Air Pollution Rule (CSAPR, or Transport Rule) back to U.S. Environmental Protection Agency. The EPA is currently reviewing the Court’s decision to determine what steps are needed to revise and implement the CSAPR. The Transport Rule was originally promulgated August 8, 2011 (76 FR 78207); it replaced the earlier “Clean Air Interstate Rule,” or CAIR, which had been issued on May 12, 2005 (70 FR 25162).
EPA Must Revise the Rule
In response to a complaint brought by EME Homer City Generation, L.P. on behalf of a number of petitioners, the Court reviewed the EPA’s August 8, 2011 rule, which required 28 “upwind” states to implement reduction of pollutants that “significantly contributed to” air pollution in downwind states. This is often referred to as the “good neighbor” requirement.
The Court’s decision to remand the rule was based on a few factors, the most significant of which was EPA’s inclusion of cost–effective reductions as part of Federal Implementation Plans (FIPs), which the court felt overstepped the EPA’s statutory authority. Under the “good neighbor” requirement, EPA must require states to reduce their own contributions to downwind states’ non–attainment of national air quality standards. The Court felt that by setting reductions based on the implementation of cost–effective controls, EPA’s CSAPR actually required states to reduce more than their own contributions.
Clean Air Interstate Rule Remains in Place
The CSAPR was actually written by EPA in response to an earlier court decision. In December 2008, the Court struck down EPA’s 2005 Clean Air Interstate Rule (CAIR). That decision left the requirements of CAIR in place until EPA could create a replacement regulation. CSAPR was that replacement. Since CSAPR itself is now remanded and undergoing review and revision by EPA, the 2005 CAIR rule is still in place.
The D.C. Circuit Court’s decision is available on its? website. ?To lean more about the EPA’s regulation of interstate air pollution, click here.
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