1. Whether the Court of Appeals lacked jurisdiction to consider the challenges on which it granted relief2. Whether states are excused from adopting SIPS prohibiting emissions that "contribute significantly" to air pollution problems in other states until after the EPA has adopted a rule quantifying each state's interstate pollution obligations.3. Whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind state's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires EPA to consider only each upwind state's physically proportionate responsibility for each downwind air quality problem.
On January 24, 2013 the U.S. Court of Appeals, D.C. Circuit, Case No. 11-1302, EME Homer City Generation, L.P v. U.S. EPA, consolidate with 44 additional cases denied a request by EPA and others for an en banc (full panel) rehearing of the case [See WIMS 1/25/13]. In this high-profile case, on August 21, 2012, the Appeals Court, in a split 2-1 decision, vacated EPA's CSAPR Transport Rule and the Transport Rule FIPs and remand this proceeding to EPA [See WIMS 8/21/13]. The opinion expressly left in place the existing Clean Air Interstate Rule (CAIR) pending EPA's further action.
EDF and the environmental groups indicated in a release that the CSAPR is a historic pollution reduction measure that would protect air quality for 240 million Americans across the Eastern United States and save up to 34,000 lives each year. The rule was created by EPA under the "good neighbor" provision of the Clean Air Act, which is intended to ensure that the emissions from one state's power plants do not cause harmful pollution levels in neighboring states. Opponents of the clean air standards sued to block them. In August 2012, a divided three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded the Cross-State Air Pollution Rule to EPA. Judge Judith Rogers, who dissented in the case, argued that the ruling represented a "trampling on this court's precedent on which the Environmental Protection Agency ('EPA') was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court."
The groups said CSAPR would reduce the sulfur dioxide pollution (by 73%) and oxides of nitrogen (by 54%) from 2005 levels emitted from coal-fired power plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone -- more commonly known as soot and smog -- drift across the borders of those states and contribute to dangerous, sometimes lethal, levels of pollution in downwind states.
The Cross-State Air Pollution Rule would reduce power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. While no one is immune to these impacts, children and the elderly in downwind states are especially vulnerable. They cited EPA estimates saying the CSAPR would: Save up to 34,000 lives each year; Prevent 15,000 heart attacks each year; Prevent 400,000 asthma attacks each year; and Provide up to $280 billion in health benefits for America each year.
