The U.S. Environmental Protection Agency exceeded its authority when it issued rules requiring states to curb air pollution affecting downwind neighbors, a divided three judge panel from the U.S. Court of Appeals for the D.C. Circuit ruled today.
The court struck down the so-called "Transport Rule" targeting sulfur dioxide and nitrogen oxides emissions, writing that the EPA "transgressed statutory boundaries" when it imposed "massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text."
"Our decision today," Judge Brett Kavanaugh continued, "should not be interpreted as a comment on the wisdom or policy merits of EPA's Transport Rule. It is not our job to set environmental policy. 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." Judge Thomas Griffith concurred.
Judge Judith Ann Wilson Rogers vigorously dissented, accusing her colleagues of "trampling on this court's precedent," and writing that "the court disregards limits Congress placed on its jurisdiction."
The case, EME Homer City Generation v. EPA, pitted attorneys general from 15 upwind states — those with pollution-emitting coal and natural gas fired power plants — led by Texas and including Virginia. Sidley Austin partner Peter Keisler was the lead counsel for industry petitioners also opposed to the rule.
Backing the EPA was a coalition of downwind states, led by New York and including Maryland and the District of Columbia. Justice Department lawyers Norman Rave, Jr, David Gualtieri and Jon Lipshultz represented the EPA.
Under the Clean Air Act, the federal government sets air quality standards, but states are given primary responsibility (if they want it) for choosing how to meet these targets. The situation gets complicated when emissions from an upwind region pollute a downwind neighbor.
"To put it colloquially, the good neighbor provision requires upwind States to bear responsibility for their fair share of the mess in downwind States," Kavanaugh wrote.
The EPA developed the transport rule to implement this provision. The problem, the court held, is that the EPA "quantified States' good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans….By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act."
In a news release, the Natural Resources Defense Council decried the decision, which John Walker, clean air director, said "allows harmful power plant air pollution to continue to aggravate major health problems and foul up our air. This is a loss for all of us, but especially for those living downwind from major polluters."
The court vacated the transport rule and remanded the proceeding to the EPA. However, the ruling left in place the Bush administration EPA's Clean Air Interstate Rule pending "development of a valid replacement."