DC Circuit Court: EPA overstepped statutory authority in enforcing Clean Air Act

The D.C. Circuit Court of Appeals this week ruled that the Environmental Protection Agency has overstepped its statutory authority in enforcing the Clean Air Act.  

The 2-to-1 decision centered on the EPA’s 2011 “Transport Rule”, which was designed to enforce the Clean Air Act’s “good neighbor” policy. Under the Transport Rule, upwind states are required to reduce emissions of sulfur dioxide and nitrogen oxides that “contribute significantly” to downwind states’ air pollution.

(Exposure to sulfur dioxide and nitrogen oxides, which are produced by the burning of fossil fuels, can cause serious respiratory illnesses, such as asthma, emphysema, or bronchitis, and lead to (costly) hospitalizations or even premature death for some.)

Several upwind states, including Texas, Florida, Indiana, filed a lawsuit objecting to the Transport Rule, claiming that the EPA had exceeded its authority granted by Congress. Two of the DC Court justices – Brett M. Kavanaugh and Thomas B. Griffith – who were appointed during the Bush administration sided with the upwind states and blocked the Transport Rule from taking effect.

In the majority opinion, Kavanaugh cited two areas where the EPA had exceeded the limits set by the Clean Air Act:

1. The Transport Rule required upwind states to reduce emissions beyond their contributions to downwind states’ air pollutions. However, the Clean Air Act only obligated upwind states to only reduce the amount of pollution they actually contributed to neighboring states.

“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,” wrote Kavanaugh. “Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.”

2. To enforce the Transport Rule, the EPA imposed Federal Implementation Plans instructing upwind states on ways to reduce emissions without giving the offending states the opportunity to come up with their own plans. The Clean Air Act required states to be given a chance to “implement the required reductions with respect to sources within their borders.”

“The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders,” Kavanaugh pointed out.

The states that brought the lawsuit against the EPA were: Texas, Alabama, Florida, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Virginia, and Wisconsin. They were supported by the San Miguel Electric Cooperative and the Industrial Energy Consumers of America.

States that opposed the lawsuit were: New York, Delaware, Maryland, Rhode Island, Massachusetts, Vermont, Illinois, Connecticut, North Carolina, and Washington, D.C.


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