Court Overturns EPA's Blueprint for Oxides, Dioxides

A three-judge panel of the U.S. Court of Appeals in Washington, D.C., recently overturned a clean-air blueprint adopted by EPA in 2005 to cut sulfur dioxide and oxides of nitrogen emissions from power plants across 28 eastern states and Washington, D.C., dubbed the "Clean Air Interstate Rule."

When discharged from tall smokestacks, sulfur dioxide and oxides of nitrogen drift hundreds to thousands of miles downwind where they exact a severe toll on human health and the environment. EPA estimated the program, one of the most health-protective adopted under the Clean Air Act, would annually prevent 17,000 premature deaths by 2015. On July 11, the court found that EPA's program had "several fatal flaws" and vacated the rule. The court reinstated a summertime program to cut smog-forming oxides of nitrogen from power plants across the East to minimize disruption in protecting human health.

Several other recent judicial decisions affect EPA's authority to address pollution from the power sector. In February, the same court overturned a trading program for mercury from coal-fired power plants, putting the agency back on the path of cutting toxic mercury pollution through the maximum reductions at each plant. In April 2007, the U.S. Supreme Court affirmed EPA's authority to regulate global warming under existing clean air laws.

"The government should take immediate corrective action to protect the millions of Americans hard hit by power plant pollution," said Vickie Patton, deputy general counsel at Environmental Defense Fund. "Power plants must do their part to cut the smog that blankets our cities, the mercury that threatens our children's development and the greenhouse gases that are recklessly warming the planet. Cost-effective solutions are at hand to protect human health and the environment from power plant pollution while ensuring the steady flow of affordable electricity."

The case, North Carolina, et al. v. EPA, No. 05-1244, was decided in a per curiam opinion by Judges Sentelle, Rogers, and Brown, who sit on the U.S. Court of Appeals in Washington, D.C.

The Clean Air Interstate Rule was to be implemented in two phases beginning in Jan. 1, 2009, for oxides of nitrogen, and 2010 for sulfur dioxide. EPA estimated that in 2010 the program would reduce sulfur dioxide emissions by 4.3 million tons across the eastern United States and 5.4 million tons in 2015. Smog-forming oxides of nitrogen would be reduced 2 million tons annually under full program implementation, about 60 percent over today's levels.

EPA also projected that the program, when fully carried out, would secure health benefits that far outweighed estimated compliance costs. The court agreed with North Carolina that EPA must consider faster reductions that better reflect states' obligations to restore healthy air and make pollution cuts that help prevent states from backsliding into non-compliance with health-based standards. The court also agreed that EPA must tailor pollution cuts in upwind states with the level of impacts wrought on downwind jurisdictions.

EPA erred in relying on or otherwise interfering with the allowance trading system established to address acid rain, the court said. It also said the agency unfairly credited coal-based utilities in designing the program. Finally, the court rejected utility claims seeking to exclude Florida and West Texas from the program.

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