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EPA’s Transport (CSAPR) Rule Struck Down



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In December 2011, reporting on the EPA in general and its Cross-State Air Pollution Rule (CSAPR) rule in particular, Texas Monthly asserted that:

In 2009, when [President Obama’s] newly appointed EPA chief, Lisa Jackson, announced that greenhouse gases would be regulated under the Clean Air Act, every state in the union began crafting rules to comply.  Every state, that is, except Texas, which sued the EPA instead.

Well, yes. Texas doesn’t just file suits against the EPA for fun; Texas files suits because the EPA exceeds its authority, which is precisely what the CSAPR rule did. After years of legal wrangling, it seems that the court agrees. In today’s decision in EME Homer City Generation v. EPA (No. 11-1302), Judge Brett Kavanaugh wrote for the U.S. Court of Appeals for the District of Columbia Circuit:

Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. 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. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

In this particular case, Texas was joined by other states. It is important to keep our air and water clean, but that doesn’t mean the EPA or any other agency of the federal government can just make up any rules they want. Thus the key line from the ruling: “Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.” Yes, it certainly does. Read the entire decision here.



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