For years, federal regulators have struggled with how best to cut harmful sulfur dioxide and nitrogen oxide emissions from power plants in the eastern half of the country. Those emissions blow downwind and contribute to forming smog and acid rain in the East. The EPA issued regulations — which were to take effect Jan. 1, 2011, but were delayed by the court — which would have required utilities in 28 states and the District of Columbia to install new pollution controls. It also established a limited cap-and-trade system that would have allowed utilities to buy and sell pollution credits in order to comply with the new standards.
EPA officials calculated that by 2014 the requirements would yield health benefits for 240 million Americans, including D.C. residents, and save between 13,000 and 34,000 lives a year. The agency predicted that in two years this rule, in concert with others, would cut sulfur dioxide emissions nationwide by 73 percent, compared with 2005 levels, and reduce nitrogen oxide emissions by 54 percent.
But Southern Co., EME Homer City Generation and Energy Future Holdings Corp. units in Texas challenged the rule, saying they could not meet the new requirements in time. Meanwhile, the state of Texas, the National Mining Association and the International Brotherhood of Electrical Workers also sued the EPA in separate cases on the grounds that the requirements were based on flawed computer models and could jeopardize the nation’s electricity supply by forcing companies to shut down older coal-fired plants.
In the ruling — authored by Judge Brett Kavanaugh and joined by Judge Thomas Griffith, both Bush appointees — the court wrote that the EPA used a section in the Clean Air Act known as the “good neighbor provision” to “impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.”
Judge Judith Rogers, a Bill Clinton appointee, dissented.
“EPA can’t force states to do more than their fair share and can’t force ‘one size fits all’ federal programs without allowing states to craft their own solution,” said Joseph Stanko, who heads government relations at the law firm Hunton & Williams and represents coal-fired utilities.
Janice Nolen, assistant vice president for national policy and advocacy at the American Lung Association, said tackling the issue is particularly hard because eastern states — such as Pennsylvania and Virginia — must meet federal air rules even when they are on the receiving end of pollution emitted as far away as Texas and Illinois.