Initial Reactions To Appeals Court Vacating EPA's Air Transport Rule

Aug 21: Many organizations and individuals are still reviewing yesterday's game-changing ruling from the D.C. Appeals Court that vacated U.S. EPA Cross-State Air Pollution Rule (CSAPR) that was finalized in July, 2011, and required 28 states in the East, Midwest, and South to reduce emissions of sulfur dioxide (SO2) and nitrogen oxides (NOx) from downwind states [See WIMS 8/21/12]. EPA posted a brief note on its website saying, "EPA is reviewing the court decision. CAIR remains in place."

 

    As the Federal Regulations Advisory blog points out, "In 2008, the court found EPA's analysis deficient and remanded EPA's 2005 Clean Air Interstate Rule (CAIR) without vacatur, because EPA had both improperly calculated the costs applicable to individual states and required the States to share each other's burdens, neither of which was authorized. The court left CAIR in place "until it is replaced by a rule consistent with our opinion."  The 2011 Transport Rule was EPA's attempt to respond to the court's 2008 decision.  Even while the current litigation was pending, the court stayed the 2011 rule and permitted EPA to continue to administer the defective 2008 rule."

 

    Below are reactions from Republicans and Democrats and industry and environmental organizations. In general, Republicans and industry organizations applauded the decision which they said curbed and "out of control" U.S. EPA. Democrats and environmental organizations were very disappointed in the decision and urged the Administration to pursue and appeal or reconsideration.

 

Republican Reactions:

 

Republican leaders on the House Energy and Commerce Committee welcomed the decision. Committee Chairman Fred Upton (R-MI) said, "Today's decision striking down EPA's costly and unworkable Cross-State Air Pollution Rule is welcome news. This is a win for American families who, because of this rule, faced the threat of higher power bills, less reliable electricity, and job losses. CSAPR is just one of several new EPA rules targeting America's power sector that together will cost our economy tens of billions of dollars and put thousands of jobs at risk. The court ruled today that EPA's transport rule 'exceeds the agency's statutory authority,' offering another reminder to the American people that President Obama's EPA is an agency run out of control."

 

    Energy and Power Subcommittee Chairman Ed Whitfield (R-KY) said, "I am pleased to see the court stand up to EPA's dangerous regulatory overreach. The courts have signaled that EPA has gone too far. EPA attempted to override states' rights, but the court ruled 'EPA has transgressed statutory boundaries.' EPA has been acting without authority and without consideration of the cumulative costs of its various rules that impact the power sector, which will ultimately cause electricity rates to increase for consumers. It is time for a more commonsense approach to regulation that does not inflict undue harm on our economy. The House-passed TRAIN Act offers a permanent solution to address the EPA's transport rule and other power sector regulations by ensuring we know the costs and consequences for consumers of these regulations before they are implemented."

 

    Committee Chairman Emeritus Joe Barton (R-TX) said, "I'm pleased the court has ruled against this unfair and unworkable regulation. Under EPA's proposal, Texas and other states would be forced to shoulder a disproportionate percentage of the country's emissions reductions, threatening thousands of jobs and electric reliability across the state. This decision comes on the heels of last week's court ruling vacating EPA's disapproval of the Texas Flexible Permit Program. With these decisions, the courts have reaffirmed states' authority and slowed EPA's aggressive regulatory expansion."

 

    Senator James Inhofe (R-OK), Ranking Member of the Senate Committee on Environment and Public Works said, "As today's court ruling on the Cross State Air Pollution Rule exemplifies, the Obama-EPA continues to exceed its authority and is living up to its 'reputation for abuse,' -- I am pleased that the courts have reined in EPA on this illegal, flawed rule. With CSAPR, EPA moved too far too fast, setting unrealistic deadlines for states to meet its stringent requirements; the agency also pushed ahead without any regard for the fact that states were intended to play the primary role in reducing emissions. As the court's CSAPR ruling rightly explains, EPA's plan rests on 'rickety statutory logic.' This is not the first time EPA has used a dubious foundation to justify its extremist agenda. Today's ruling follows three significant court rulings which found that EPA overreached to the point that the judge in one case said EPA was using 'magical thinking' and aggregating 'a stunning power' to itself. Now given EPA's track record, it will not be surprising if the courts also rein in EPA's Utility MACT rule, which suffers from similar flawed data assumptions and unrealistic time frames. . ."

 

Democrats Reaction:

 

    House Energy & Commerce Committee Ranking Member Henry Waxman (D-CA) said, "I deplore this 2-1 decision, which vacates clean air protections that would have avoided up to 34,000 premature deaths each year. Congress adopted the Clean Air Act 'good neighbor' provisions to ensure that Americans in downwind states would have effective recourse against upwind polluters. But these activist judges have flouted congressional intent, the language of the Clean Air Act, and prior D.C. Circuit opinions to impose their own policy preferences and eviscerate EPA's authority to protect downwind states and their citizens. I urge the administration to appeal this decision."

 

    Representative Ed Markey (D-MA), Ranking Member on the Natural Resources Committee said, "Implementation of the Transport Rule would save lives and money in Massachusetts and across the country. Cutting down on dangerous pollution traveling across state lines means cleaner air, clearer lungs and healthier lives for families across the Bay State and nationwide. I urge the Obama administration to appeal this misguided decision by the courts so that Massachusetts and other states impacted by harmful emissions from old, polluting coal plants can clean up their air."

 

Industry Organizations:

 

    National Association of Manufacturers (NAM) President and CEO Jay Timmons said, "Costly and excessive regulations are harming manufacturers' ability to compete. Today the federal court agreed that the EPA had overstepped its reach with the CSAPR regulation. The CSAPR and Utility MACT regulations would cost an estimated 1.44 million jobs by 2020 and drive up energy prices nationwide by 11.5 percent. In fact, we have already begun to see the impact of CSAPR in plant closings and job losses. As users of one-third of our nation's energy, manufacturers simply cannot afford these burdensome regulations while facing an unemployment rate of 8.3 percent. As noted in a new study by MAPI today [see separate article below], manufacturers are facing more than 2,000 regulations, which have been imposed over the past three decades. EPA regulations lead the way, not only in number, but also in cost. If manufacturers are to be the engine that drives our economy and creates jobs, we need action to reduce this regulatory burden and stop the EPA's overreach."

 

    Karen Harbert, president and CEO of U.S. Chamber of Commerce, Institute for 21st Century Energy said, "Today's decision is good news for consumers and for the reliability of our electricity grid. It is notable that for the second time in two weeks, federal circuit courts have affirmed the primary responsibility of states -- not the EPA -- in determining how to meet air quality standards under the Clean Air Act. It has always been the contention of the Chamber that EPA regulations should be supported by sound science and accurate analysis. The EPA has habitually inflated the benefits and underestimated the costs of its regulations. Vacating this rule relieves utilities from unrealistic timelines and unjustified standards for compliance, at least from this particular rule. However, utilities still must comply with unreasonable timelines on the Utility MACT rule, which is also undergoing judicial review. A recent Mid-Atlantic and Midwest regional electricity auction saw capacity prices increase by eight-times as much as today for 2016, the first year that utilities must comply with Utility-MACT. With today's ruling, we call on the Obama Administration to heed these judicial rulings and re-craft sensible regulations that don't jeopardize economic growth or electricity reliability."

 

   Environmental Organizations:

 

    Mary Anne Hitt, Director of the Sierra Club's Beyond Coal Campaign said, "The Sierra Club is disappointed with the court's decision today. Americans have been waiting for the clean air they deserve for decades and the court's ruling today further delays the Clean Air Act's promise of safe, breathable air for our children. The EPA's long overdue and much-needed rule would have helped communities clean up their air and save lives by curbing millions of tons of air pollution that travel downwind and across state lines each year. Once implemented, the rule would have prevented as many as 34,000 premature deaths annually, avoided 19,000 hospital and emergency room visits, and improved the lives of millions. We urge the Environmental Protection Agency to petition for rehearing and strive to preserve the public health benefits that the rule promises. As Judge Rogers of the DC Circuit has explained [in the dissenting opinion], by ruling against EPA, 'the court disregards limits Congress placed on [the DC Circuit's] jurisdiction, the plain text of the Clean Air Act (CAA), and this court's settled precedent interpreting the same statutory provisions at issue today.' EPA can and must seek a rehearing of this critical life saving rule.

 

    John Walke, clean air director at the Natural Resources Defense Council (NRDC) said, "This decision 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. This rule would have prevented thousands of premature deaths and saved tens of billions of dollars a year in health costs, but two judges blocked that from happening and forced EPA to further delay long overdue health safeguards for Americans. The EPA can -- and should -- immediately appeal this decision. The dissenting judge correctly follows the Clean Air Act and prior rulings by this court. The majority opinion is an outlier at odds with the court's own rulings as well as the Clean Air Act." NRDC notes that absent this decision being overturned, "it will take years for EPA to adopt replacement health safeguards that all three judges recognize to be necessary and required by law."

   

    Access the analysis from the Federal Regulations Advisory blog (click here). Access the statements from the House Energy and Commerce Committee Republican members (click here). Access the complete statement of Sen. Inhofe (click here). Access the statement from Rep. Waxman (click here). Access the statement from Rep. Markey (click here). Access the statement from NAM (click here). Access the statement from the Chamber (click here). Access the statement from Sierra Club (click here). Access a release from NRDC with more analysis and links to additional information (click here). Access EPA's CSAPR website (click here). [#Air]

 

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