Appeals Court Upholds Strengthened Cross-State Air Pollution Rule

September 13, 2019 by Dan McCue

WASHINGTON –  The U.S. Court of Appeals for the D.C. Circuit on Friday upheld an Obama-era update of the Cross-State Air Pollution Rule designed to protect downwind states from coal plant air pollution that blows across their borders.

Congress enacted the Cross-State Air Pollution Rule with a so-called “good neighbor provision” that requires upwind states to eliminate their significant contributions to air quality problems in downwind states.

The original Cross-State Air Pollution Rule was upheld by the Supreme Court in 2014.

In 2016, the Environmental Protection Agency formally implemented the provision by creating a regulation directly dealing with smog.

Under the new regulation, which was slated to go into effect in May 2017, coal-fired power plants in 22 states in the eastern US. were required to reduce their summertime sulfur dioxide and oxides of nitrogen emissions to 2008 levels.

The agency said the new rule, which mandated the reductions from May to September, would result in $880 million in benefits and reduce ground-level ozone exposure for millions of Americans. 

The EPA further said the rule would provide American families with $13 in health benefits for every dollar invested.

Coal companies, coal-based power companies, and five states sued EPA over the updated rule.

Not long after, a broad coalition went to court to defend it, including six states, the Environmental Defense Fund, the American Lung Association, the Appalachian Mountain Club, and Sierra Club.

On Friday, a three-judge appellate court panel rejected what is called a “smorgasbord” of arguments from upwind states and companies seeking to overturn the rule.

The court denied all claims that the rule is too protective, finding instead that the rule properly implements EPA’s statutory obligation to protect the residents of downwind states from interstate pollution that harms public health and the environment.  

The court also ruled that, in one respect, the Cross-State Air Pollution Rule needs to be strengthened.

The judges agreed that the rule does not adequately conform to the Clean Air Act deadlines by which downwind states harmed by interstate pollution must meet health-based Clean Air Act air quality standards. The court remanded the rule to EPA to take corrective action on that point, while leaving the rule in place so as not to compromise its significant health benefits.

Reacting to the ruling, Graham McCahan, senior attorney for Environmental Defense Fund, said “Today’s court decision will help millions of Americans have healthier, safer air to breathe.“The Cross-State Air Pollution Rule is a common sense safeguard that provides vital clean air protections for the downwind states that suffer because of their neighbors’ smokestack pollution,” McCahan said.

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