Judges Toss EPA Rule To Reduce Smog, Soot

By Del Quentin Wilber and Marc Kaufman
Washington Post Staff Writers
Saturday, July 12, 2008

A federal appeals court yesterday threw out a major component of the Bush administration's effort to reduce unhealthy levels of soot and smog in Eastern and Midwestern states, a decision that environmental groups worry will delay action on air pollution well into the next administration.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled unanimously that the Environmental Protection Agency overstepped its authority in instituting a rule that would have established a cap-and-trade system for soot and smog.

The court ruling came on the same day that the administration said it would take no steps under the Clean Air Act to regulate greenhouse gas emissions that contribute to global warming, even though the EPA formally announced that it would seek public comment on the issue.

The Clean Air Interstate Rule (CAIR) rejected by the court does not apply to greenhouse gases such as carbon dioxide.

The rule represented the Bush administration's most aggressive action to clean the air over the next two decades. The EPA estimated that the rule would help prevent 17,000 premature deaths and reduce levels of sulfur dioxide and nitrogen oxides by as much as 70 percent by 2025. An unusual alliance of power companies and environmental groups supported the measure.

But the judges found that the EPA had committed "more than several fatal flaws" in creating the measure, which was challenged by several power companies and the state of North Carolina for a variety of contrasting reasons.

"No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule," according to the unanimous 60-page opinion issued by the D.C. Circuit's chief judge, David B. Sentelle, and Judges Judith W. Rogers and Janice Rogers Brown.

EPA Administrator Stephen L. Johnson said in a conference call with reporters that "we are extremely disappointed in the court's decision because it's overturning one of the most protective [air pollution] rules in our nation's history. . . . We'll wait and see what our next steps are."

Environmental groups said the decision will delay efforts to reduce harmful air pollution and will leave tough decisions to be made by the next president and Congress.

"This is probably the biggest air-quality setback ever suffered by the EPA under any administration," said John Walke, clean air director and senior attorney for the National Resources Defense Council, an advocacy group.

Lawmakers who support tougher air pollution standards said the decision should help their efforts to pass legislation.

"Our air isn't getting any healthier as we battle new clean air regulations in the courts and Congress continues to stall in passing strong clean air legislation," Sen. Thomas R. Carper (D-Del.), chairman of the Senate clean air and nuclear safety subcommittee, said in a statement.

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