Author Archives: David Lifland

Court Hears Oral Argument on Cross-State Air Pollution Rule

Today, the U.S. Court of Appeals in Washington D.C. heard oral arguments on legal challenges to EPA’s Cross-State Air Pollution Rule

As I wrote yesterday, the Cross-State Air Pollution Rule reduces emissions of sulfur dioxide and nitrogen oxides from power plants in 28 eastern states.

EPA issued the rule to implement the “Good Neighbor” provision of the Clean Air Act, which prohibits emissions from power plants in one state that contribute significantly to harmful pollution levels in other states.

The courtroom was packed this morning, as attorneys challenging and defending the rule were questioned by Judges Rogers, Griffith, and Kavanaugh.

The questioning lasted more than two hours. 

Opponents of the rule were represented by two lawyers – one for states and one for power companies.

EPA was represented by three attorneys from the Department of Justice.

In addition, three lawyers spoke for intervenors supporting EPA: one for governments (nine states and several cities); one for power companies supporting the rule; and one for public health and environmental organizations — including EDF.

The court first explored one of the claims by the opponents: that EPA lacked the statutory authority to issue federal plans requiring emission reductions without first giving the states more time to submit their own proposed plans.

The opponents claimed that states couldn’t submit their own plans until EPA told them the exact amount of necessary emission reductions.

Judge Rogers pointed out that a similar prior rule was issued in the form of federal plans – and added that the statute doesn’t say that states have to wait for EPA to act before submitting state plans. 

Judge Griffith told the opponents’ attorney:

You don’t have a strong plain text argument.

However, when the same issue came up later in the proceeding, Judge Kavanaugh questioned EPA’s counsel about whether it was practical for states to submit plans before EPA quantified the emission reduction requirements.

Another of the opponents’ major claims was that EPA acted “impermissibly” by:

  • Using an air quality impact trigger to determine which states should be covered by the rule
  • Then using a cost-effectiveness measure to define the required emission reductions
  • Then not going back to repeat the air quality impact analysis to see if the emission reductions would take the states below the trigger point for being covered under the rule

 Judge Rogers noted that the court had accepted a similar two-part methodology in previous cases. 

 And both Judge Rogers and Judge Griffith questioned whether the opponents had waived this claim by failing to raise it specifically during EPA’s rulemaking.

The opponents also argued that EPA had failed to sufficiently validate its air quality modeling — raising concerns about whether the required emission reductions based on that modeling were arbitrary. 

EPA’s counsel responded by describing how the air quality model was extensively validated for 2005 — the most recent period with data that could be used for the purpose.

EPA’s counsel argued that it was entirely reasonable for EPA to use the validated model to make projections for later years.

The opponents’ counsel argued that point vigorously — comparing EPA’s modeling to a car that is nice and shiny, but won’t start. 

EPA’s counsel won a big laugh in the courtroom with his response. He said that, after having shown that the car could drive to the 7-11, EPA was justified in believing that the car could drive a little further down the street to the Starbucks.

The judges were extremely attentive to what both sides had to say throughout the argument. They also asked each of the three lawyers representing EPA to briefly return to the podium a second time to address final points — after all the other attorneys had spoken for the last time.

It was an intense and fascinating morning for those of us in attendance.

Now, we all just wait for the court’s decisions … most likely this summer.

In the meantime, read more about the Cross-State Air Pollution Rule, including its effects on your state. You can also read all the briefs filed in the case on our website.

Posted in Clean Air Act, Health, News | 2 Responses, comments now closed

Cross-State Goes to Court: Oral Arguments Start Tomorrow in Lawsuits about Clean Air Rule

Another big day in court looms for EPA’s clean air protections.

This time it’s the Cross-State Air Pollution Rule that’s under fire.

Tomorrow, the U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments in lawsuits over the rule – a rule that provides vitally important clean air protections for families across the eastern half of the United States.  

The Cross-State Air Pollution Rule reduces the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. That pollution drifts across the borders of those states, contributing to dangerous — and sometimes lethal — levels of particulate and smog pollution in downwind states.    

EPA issued the rule under the “Good Neighbor” protections of the Clean Air Act, which ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states.

The Cross-State Air Pollution Rule would reduce power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. These emissions and the resulting particulate pollution and ozone (more commonly known as soot and smog) impair air quality and harm public health — both near the plants and hundreds of miles downwind. 

The Cross-State Air Pollution Rule will provide healthier air for 240 million Americans in downwind states. EPA estimates that the Cross-State Air Pollution Rule, when fully implemented, will:

  • Save up to 34,000 lives each year
  • Prevent 15,000 heart attacks each year
  • Prevent 400,000 asthma attacks each year
  • Provide $120 billion to $280 billion in health benefits for the nation each year   

(Check the health protections for your state here)

Here’s the history of the case:

The Cross-State Air Pollution Rule was adopted on July 6, 2011, and compliance with the rule was scheduled to begin January 1, 2012. But opponents sued.

On December 30th, the court granted motions by several power companies and states to temporarily halt implementation of the rule. (The same court similarly halted EPA's first interstate air pollution protection program — and then later affirmed EPA's action after a complete review of the facts and law.) 

So — we go to court tomorrow.

Judges Rogers, Griffith, and Kavanaugh will hear oral arguments in the case beginning at 9:30 a.m. Eastern time.

EDF will be in court to support the Cross-State Air Pollution Rule. And we certainly won’t be alone.

Nine states (Connecticut, Delaware, Illinois, Massachusetts, Maryland, New York, North Carolina, Rhode Island, Vermont), the District of Columbia, five major cities (Baltimore, Bridgeport, Chicago, New York and Philadelphia), the American Lung Association, the Clean Air Council, NRDC, Sierra Club, and several major power companies (Calpine, Exelon and Public Service Enterprise Group) have all intervened in support of these crucial clean air protections.  

On the other side are: other power companies (AEP, Southern, GenOn, Luminant) and states such as Texas.

You can read all the briefs that have been filed in the case on our website.

And soon you can read more about it right here. I’ll be in the courtroom to listen to oral arguments, and I’ll post the highlights for you.

Posted in Clean Air Act, Health, News | 1 Response, comments now closed
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