CAIR Package

A federal court reverses itself on a clean-air rule pushed by President Bush.

IF THERE was one area where President Bush and environmental advocates found common cause, it was in making sure that the president's Clean Air Interstate Rule (CAIR) withstood all the legal challenges filed to stop it. The 2005 directive from the Environmental Protection Agency sought to cut power plant emissions of sulfur dioxide by 70 percent and nitrogen oxide by 60 percent from 2003 levels using a cap-and-trade system, starting in 2015. The U.S. Court of Appeals for the District of Columbia tossed out the entire rule in July because of "fatal flaws" (i.e. "regionwide caps with no state-specific . . . emissions requirements"). But last week the court reversed itself. Call it a Christmas miracle.

The CAIR rule would cover the District of Columbia and 28 states in the Midwest and the East. For states downwind from power plants spewing contaminants, this was necessary relief. The rule was also the foundation for many other current and proposed regulations, including a change in the new source review (NSR) provision of the Clean Air Act. The administration proposes to relax this rule, which governs when renovations of an existing power plant require an upgrade of pollution controls. Without CAIR, the proposed new source review changes would have amounted to a free pass for polluters. It was because CAIR plays such an important role in the Clean Air Act that the court saw fit to reverse itself.

The court still says CAIR is flawed. But Judge Judith W. Rogers wrote in a concurring opinion that "the rule has become so intertwined with the regulatory scheme that its vacatur would sacrifice clear benefits to public health and the environment while EPA fixes the rule." The agency estimates that the CAIR rule would prevent 17,000 premature deaths annually. While there is no deadline for the agency to correct the flaws, the court made it clear that the timetable is not "indefinite." The task will fall to President Barack Obama to make the court-ordered changes.