Coal, Emissions

Federal appeals court declines to reconsider Cross-State Air Pollution Rule

A federal appeals court has declined to rehear a case that vacated the U.S. Environmental Protection Agency’s Cross-State Air Pollution Rule (CSAPR). The U.S. Court of Appeals for the District of Columbia issued the order denying a rehearing Jan. 24.

In addition, the court issued an order denying a panel rehearing that the EPA had requested from the original three-judge panel. The three-judge panel, which included Judith Rogers, Thomas Griffith and Brett Kavanaugh, had vacated the rule with a 2-1 vote last August.

Although the original decision came with a 60-page opinion vacating the order from Griffith and Kavanaugh and a 44-page dissent from Rogers, the court only issued two single-page orders Thursday that denied the rehearings. The order denying a panel rehearing noted that Rogers would have granted the request.

The Cross-State Air Pollution Rule would have required 28 states to reduce nitrogen oxide and sulfur dioxide emissions that cross state lines. The rule, which was issued in July 2011, was largely aimed at reducing emissions from coal-fired power plants.

The panel ruled in the original decision the EPA should have allowed states the opportunity to issue state plans, and the rule may have required upwind states to reduce emissions more than a downwind state.

The court has directed the EPA to continue to use the Clean Air Interstate Rule (CAIR) until a replacement rule can be issued. CAIR was rejected by D.C. Circuit Court of Appeals in 2008, but was left in place until the EPA developed a new rule consistent with the court’s opinion. The CSAPR was intended to replace CAIR.

The EPA issued a statement expressing disappointment that the court chose to not rehear the case, but stated the agency would review the decision before deciding on any further action. If the EPA chooses to pursue further action, the agency would need to file an appeal with the Supreme Court.

To read the order, click here.

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