Court vacates major EPA power plant air pollution rule - Business, Government Legal News from throughout WV

Court vacates major EPA power plant air pollution rule

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The EPA exceeded its authority in the Cross State Air Pollution Rule, a federal appeals court ruled Aug. 21 in vacating the major power plant air pollution rule.

The rule is also known as the Transport Rule.

"EPA's Transport Rule exceeds the agency's statutory authority in two independent respects," wrote Judge Brett Kavanaugh of the U.S. Court of Appeals for the D.C. Circuit in the decision on an appeal by many states and organizations of the July 2011 rule that would limit power plant emissions in 28 states that are transported downwind to other states.

The rule violates the Clean Air Act, or CAA, by requiring states to reduce their emissions by more than their own significant contributions to downwind states' nonattainment of air quality standards, according to the decision.

And the agency did not allow states the opportunity, as required by the CAA, to meet their "good neighbor" obligations before imposing its own Federal Implementation Plans, Kavanaugh wrote.

The Transport Rule would have required 28 states across the eastern half of the nation to reduce power plant emissions over the coming several years of sulfur dioxide, or SO2, and nitrogen oxides, or NOx, that contribute to ozone and fine particle pollution downwind.

But the biggest problem it aimed to address was fine particle pollution, or PM 2.5, particulate matter smaller than 2.5 microns, which contributes to respiratory and cardiovascular problems ranging from asthma and bronchitis to heart attack and stroke.

All told, the agency estimated that the pollution reductions would have cost about $2.4 billion a year and netted $120 billion to $280 billion a year — at minimum, 50 times the cost, a range validated by a Harvard / MIT analysis — primarily in the form of at least 13,000 premature deaths avoided.

West Virginia, with the highest per capita mortality risk from fine particle pollution among states, would have benefited more than most states from the Transport Rule: beginning in 2014, between 280 and 710 premature deaths avoided in the state, according to the agency's estimate.

And it would have required no or little action in West Virginia.

The small, old coal-fired power plants in the state — the only ones that Fred Durham at the Department of Environmental Protection's Office of Air Quality said might need to take action in 2014 in order to comply with the Transport Rule — have, since the rule came out, been on reduced schedules and slated for retirement because of competition from cheap natural gas.

It must be noted that, with similar coal-fired plant retirements planned across the nation, the emissions landscape has changed — improved — dramatically since the Transport Rule came out in July 2011.

The court's decision follows a number of others recently in which EPA actions have been thrown out on appeal.

Judge Thomas Griffith joined Kavanaugh in the decision vacating the Transport Rule.

Judge Judith Rogers dissented strongly, writing that the decision disregarded Congressional limits on its own jurisdiction, the text of the CAA and relevant settled precedent.

The result, she wrote, is "a redesign of Congress's vision of cooperative federalism between the States and the federal government in implementing the CAA based on the court's own notions of absurdity and logic that are unsupported by a factual record."

The decision may be read here.

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