West Virginia stood to gain more in health benefits than most states from the major power plant pollution rule that was thrown out on Aug. 21.
But, although observers say it's too soon to tell, those health benefits may remain largely in place.
The U.S. Environmental Protection Agency exceeded its authority with the Cross-State Air Pollution Rule, the U.S. Court of Appeals for the District of Columbia ruled Aug. 21 in vacating CSAPR, also is known as the Transport Rule.
"EPA's Transport Rule exceeds the agency's statutory authority in two independent respects," wrote Judge Brett Kavanaugh in the 2-1 decision on an appeal by many states and organizations of the July 2011 rule.
The rule violated the Clean Air Act, or CAA, by requiring deeper emissions cuts than necessary, Kavanaugh wrote, and by failing to give states the opportunity to meet their "good neighbor" obligations before imposing Federal Implementation Plans.
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 soot and smog pollution downwind.
The biggest problem it addressed 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 saved $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 — 14.7 per 100,000 adults in 2010, according to a Clean Air Task Force report, with more than 20 per 100,000 in some northern counties — 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 EPA's estimate.
Even with the rule vacated, those public health benefits may remain in place.
Two important changes have taken place since the Transport Rule came out in July 2011.
One is the EPA's December 2011 Mercury and Air Toxics Standards.
"The pollution control equipment that power plant operators will install to comply with the Mercury and Air Toxics Standards will sharply reduce SO2 and particulate matter pollution," said John Walke, director of the Natural Resources Defense Council's Clean Air Program.
The other is the announced retirements of many of the old coal-fired power plants that have no pollution controls.
"I believe that the announced retirement decisions were made overwhelmingly in response to natural gas prices and not because of the Cross-State Rule," Walke said.
"What that means is that, while smog protections will be reduced by this decision, the life savings from reducing soot pollution would remain in effect," he said.
Walke emphasized that neither of these is certain. The mercury rule faces court challenge and should be heard in the next six months, he said, and it's not possible to know whether plant retirements will be withdrawn until utilities have had time to think it all through.
In addition, the EPA may appeal the Transport Rule decision.
"There have been three decisions interpreting the ‘good neighbor' provision of the CAA," said David Marshall, senior counsel at the Clean Air Task Force.
All three have been decided by three-judge panels of this same court, Marshall said. And while two judges decided to throw out the Transport Rule in this case, Judge Judith Rogers, who wrote a strong dissent, sat on all three panels.
"You don't see dissents that blistering without serious faults in the majority opinion," Walke said, "so lawyers in D.C. have already discussed how the dissent serves as a roadmap for an appeal by the Obama Administration and for the rest of the judges on that court to reverse the decision."
The agency has a number of options, Marshall said.
"The EPA can simply ask for reconsideration by the same panel, which is usually not successful," he said. "The second option is to ask for a review by all the judges on the court, rather than just this panel, and then the third is to seek certiorari from the Supreme Court to review the decision."
Such appeals typically would have a 45-day filing deadline, he said.
The court's decision follows a number of others recently in which EPA actions have been thrown out on appeal.
The decision leaves the previous Clean Air Interstate Rule on interstate pollution in place.
All content © Copyright 2000 - 2013 WorldNow and WVSTATE. All Rights Reserved.
