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Bear in the Woods: Environmental Law Blog

Tuesday, August 21, 2012

Won’t you be my neighbor? Court says no.

A divided federal appeals court (US Federal Court of Appeals for the DC Circuit) handed down its ruling today addressing arguments that federal regulators went too far in adopting the Cross State Air Pollution Rule, which established new regulations to control air pollution throughout portions of the eastern United States.

The regulations at issue were adopted under the federal Clean Air Act's "good neighbor" provision, which requires upwind states to prevent sources within their borders from emitting air pollutants in amounts that contribute significantly to a downwind state's nonattainment of federal air quality standards. Its purpose is to establish a workable approach to interstate air pollution issues that have huge public health implications.

By a vote of 2-1, the court found that the Environmental Protection Agency had overstepped its legal authority in developing the rule. As a result, the Court vacated the offending provisions.

This ruling raises several concerns. First, it creates uncertainty over the timing and magnitude of the emissions restrictions that ultimately will be imposed on sources in upwind states. Also, delays in establishing regulations and requirements to upgrade or build cleaner generation will result in foregone emissions reductions and will fail to send clear market signals to make investments in cleaner generation, such as natural gas, renewable energy, and efficiency.

The EPA must continue administering the provisions of its previously-adopted Clean Air Interstate Rule pending adoption of a valid replacement, or until the U.S. Supreme Court agrees to review this decision and overturns it.

EME Homer City Generation, L.P. v. EPA, No. 11-1302.

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