Federal appeals court throws out EPA air standard

Posted Aug. 21, 2012, at 6:15 p.m.
Last modified Aug. 21, 2012, at 6:57 p.m.

WASHINGTON — A divided federal appeals court Tuesday overturned a regulation clamping down on power plant pollution that contributes to unhealthy air in neighboring states.

In a 2-1 decision, a panel of the U.S. Court of Appeals for the District of Columbia Circuit said the Environmental Protection Agency’s cross-state air pollution rule exceeded the agency’s statutory authority. The court faulted the EPA for imposing “massive emissions reduction requirements” on upwind states without regard to limits imposed by law.

In adopting the regulation a year ago, the EPA sought to reduce downwind pollution from power plants in more than two-dozen states. The rule was scheduled to go into effect in January, but several large power companies and some states sued to stop it. The appeals court agreed last December to suspend the rule pending its review.

In Maine and New England, environmental and health advocates called the appeals court decision a “setback” for the region’s air quality.
Environmental groups in Maine have been calling for tighter limits on emissions by Midwest power plants for years.

“It’s a bad day for anyone who breathes,” Judy Berk, communications director for Natural Resources Council of Maine, said Tuesday.

In a prepared statement, Jeff Seyler of the American Lung Association of the Northeast said coal-fired power companies are using lawyers and lobbyists to block progress toward better air protections. Pollutants in emissions from such plants contribute to asthma attacks, lung and heart disease, cancer, and other causes of premature death.

”It allows out-of-state industries to continue sending their toxic pollution across the Northeast while our children and families pay the price,” Seyler said.

According to Berk, Tuesday’s ruling was mainly about sulfur and nitrogen emissions, which have been linked to illness-causing smog and soot.

In June, U.S. Sens. Susan Collins and Olympia Snowe of Maine and other senators voted to defeat a bill that would have blocked new limits on mercury emissions from power plants.
Kevin Kelley, spokesman for Sen. Collins, said Tuesday evening in a prepared statement that Collins has been in favor of reducing pollution that blows into Maine from other states.

“Sen. Collins has consistently supported efforts to address smog and particulate matter pollution across state lines by reducing emissions of soot and ozone,” Kelly said. “In addition, last year, Sen. Collins voted against considering Sen. Rand Paul’s resolution that would have blocked the Cross-State Air Pollution Rule. She hopes this rule can be reworked to take into account the court’s decision so that this important pollution control effort can proceed.”

In a separate statement, Sen. Snowe said she has long been supportive of efforts to keep air pollution from blowing into Maine and said the appeals court decision was a “step back” to those efforts.

“It is unacceptable that these pollution costs are simply transferred from one region to another and that is why I have strongly supported reducing this pollution with cost-effective technologies,” Snowe said. “The clean-air rule, as written, is a reasonable solution to the problem New England states experience from Midwest pollution and the court should not block its implementation. I hope that a strong rule consistent with court’s ruling can be implemented quickly to protect Maine’s most vulnerable.”

Attempts late Tuesday to contact U.S. Reps. Chellie Pingree and Mike Michaud for comment were unsuccessful.

On Tuesday, in a decision joined by Judge Thomas Griffith, Judge Brett Kavanaugh — both appointees of Republican President George W. Bush — wrote that decision should not be interpreted as “a comment on the wisdom or policy merits of” the EPA rule.

“It is not our job to set environmental policy,” Griffith wrote. “Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.”

In a dissent, Judge Judith Rogers, an appointee of Democratic President Bill Clinton, said the court had disregarded “limits Congress placed on its jurisdiction, the plain text of the Clean Air Act, and this court’s settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did.”

Sulfur dioxide and nitrogen oxide pollution from power plants can be carried long distances and the pollutants react with other substances to form smog and soot, which have been linked to illnesses. The cross-border pollution has prevented many cities from complying with health-based standards set by law.

EPA spokeswoman Alisha Johnson said the agency is reviewing the decision, and will determine what steps to take after the review is complete.

“EPA remains committed to working with states and the power sector to address pollution transport issues as required by the Clean Air Act,” she said.

Berk said Tuesday that Natural Resources Council of Maine is encouraging EPA to appeal the decision to a higher court. If the proposed rule had gone into effect, she said, Mainers would suffer fewer heart attacks, make fewer hospital and emergency room visits, and miss fewer days of work because of poor health. She said the estimated economic benefit to Maine residents from breathing cleaner air and enjoying better health would be $490 million each year.

“It’s a big deal,” she said. “We’re very disappointed in the split decision by the appeals court.”

Tuesday’s ruling follows a decision June 26 by a different panel of judges in the appeals court upholding the first-ever regulations aimed at reducing the gases blamed for global warming.

The EPA has been at the center of attacks by industry groups for what they view as job-killing and economically destructive regulations.

The new downwind pollution rule was triggered by a federal court throwing out the previous one penned by the Bush administration. The new regulation would have replaced a 2005 Bush administration rule. The new rule would have cost power plant operators $800 million annually in 2014, according to EPA estimates. That’s in addition to the $1.6 billion spent per year to comply with the Bush rule that was still in effect until the government drafted the new one.

The EPA said the investments would be far outweighed by the hundreds of billions of dollars in health care savings from cleaner air. The agency said the rule would prevent more than 30,000 premature deaths and hundreds of thousands of illnesses each year.

Tuesday’s court decision leaves the 2005 regulation in place.

Scott Segal, director of the Electric Reliability Coordinating Council, a coalition of utilities and energy companies, called the ruling a “stern warning” to EPA.

“The fair and appropriate regulation of electric power production in the United States is no mere academic exercise,” he said. “When the EPA takes liberties with its legal authority, the result is higher prices for consumers, businesses, schools and hospitals. At a time of economic recession, the country cannot afford sloppy rulemaking of this sort. The EPA can and should do better.”

On the other side, the Clean Air Task Force, an environmental group, said that the ruling “will mean that American lives will continue to be needlessly lost. Long-overdue pollution controls that had been required by the rule on many of the nation’s coal-fired power plants, including those in the Midwest, will now be delayed even further.”

Bangor Daily News writer Bill Trotter contributed to this report.

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