Cross-State Air Pollution Rule CSAPR Vacated By Court

On August 21, the U.S. Court of Appeals for the District of Columbia legally voided EPA's August 2011 Cross-State Air Pollution Rule (CSAPR). CSAPR, also known as the Transport Rule, applies emissions limits on 28 upwind states to protect downwind states from air pollution. The rule has been on hold since December 2011. In its place, EPA has been enforcing CSAPR's predecessor, the Clean Air Interstate Rule, or CAIR.The statutory requirement for upwind states to prevent sources within their borders from polluting downwind states is often called the “good neighbor statute.” In order to implement this good neighbor statute, the Transport Rule places limits primarily on upwind states' coal-and natural gas-fired power plants' emissions of sulfur dioxide and nitrogen oxides.Several states, local governments, industry groups, and labor organizations petitioned the court for a review of the Transport Rule.

The Court explained that both the federal government and the states play significant roles in a system of cooperative air pollution control. "The federal government sets air quality standards for pollutants. The states have the primary responsibility for determining how to meet those standards and regulating sources within their borders."In its decision, the Court said EPA's Transport Rule exceeds the Agency's statutory authority in two ways:

1. The statute grants EPA the authority to require upwind states to reduce only their own significant contributions to a downwind state's nonattainment. However, the Transport Rule may require states to reduce emissions by more than their own significant contributions to a downwind state's nonattainment. The court stated, “EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text.”
2. The Clean Air Act affords states the initial opportunity to implement reductions required by EPA under the good neighbor provision. But the Transport Rule did not allow the states this opportunity. Instead, EPA quantified states' good neighbor obligations and simultaneously set forth EPA-designed obligations at the state level.

The Court noted that Congress could alter the statute to permit or require EPA's preferred approach to the good neighbor issue. Unless and until Congress does so, EPA must enforce the standard as it is currently written. The Agency has not yet commented on the ruling or on whether it will continue to implement CAIR.

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