The Environmental Protection Agency has been waging a regulatory war on Texas—and losing in the federal courts. On Tuesday the U.S. Court of Appeals for the D.C. Circuit struck down another misguided EPA rule.
Enacted in August 2011, the Cross-State Air Pollution Rule was supposed to reduce air pollution emitted in one state and carried downwind to another. Under the Clean Air Act, if pollution from the upwind state is causing the downwind neighbor to fail federal air quality tests, then the EPA can order the upwind state to reduce the emissions causing the problem.
But even such expansive authority from Congress is never enough for the Obama EPA. So the agency decided to use the rule-making as a pretext to force down emissions even further—illegally, as it turns out.
In Tuesday’s decision, two of the three judges on the appellate panel found that under the 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.”
The court found that the feds also broke the law by dictating the measures to be used to reduce emissions instead of allowing states to design their own plans, as the statute demands. “Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable,” wrote Judge Brett Kavanaugh.