A federal appeals court on Oct. 1 tossed out a U.S. Environmental Protection Agency rule intended to address interstate smog pollution, finding the regulation rested on a legal interpretation of the Clean Air Act that the same court rejected less than a month earlier.
In doing so, however, the U.S. Court of Appeals for the District of Columbia Circuit appeared to leave the door open for the EPA to justify the rule upon remand.
At issue are two related regulations connected to the Clean Air Act's "good neighbor" provision, which prohibits upwind states from significantly interfering with downwind states' ability to comply with the National Ambient Air Quality Standards, or NAAQS. Approximately 36 million people in 49 counties in eastern states and Texas live in areas where that exceeds the 2008 ground-level ozone standard of 75 parts per billion, according to EPA data.
In 2016, the EPA updated its Cross-State Air Pollution Rule, or CSAPR, asserting that it fully addresses the "good neighbor" requirements for 20 states with regard to a ground-level ozone standard set in 2008. However, the U.S. Court of Appeals for the District of Columbia Circuit on Sept. 13 found that the EPA needed to rework the 2016 CSAPR update because it failed to require upwind states to eliminate their interstate smog contributions in concert with downwind states' deadlines to comply with the NAAQS.
Now, a different panel of D.C. Circuit judges determined that a related December 2018 regulation, dubbed the "close-out" rule, is inappropriate as well because it relied on the same faulty reasoning underlying the 2016 update. The rule had "closed out" the CSAPR update by determining that all remaining regions in nonattainment of the 2008 standard in the eastern U.S. will be in compliance in 2023. In doing so, the EPA said power plants in those states will not need to install additional pollution controls.
Dealing losses to intervenors that included the National Rural Electric Cooperative Association and the now-disbanded Utility Air Regulatory Group, the Oct. 1 court ruling noted the EPA's CSAPR update and close-out rule both would have allowed excessive smog-forming emissions coming from upwind states to interfere with downwind states' ability to comply with NAAQS deadlines. In the case of the close-out rule, the regulation would have allowed upwind contributions to occur beyond 2021, which is the next applicable NAAQS attainment date.
Nevertheless, the court acknowledged that the EPA still retains some flexibility in administering the Clean Air Act's good neighbor provision. For example, the court noted the EPA could grant one-year extensions for downwind states under certain circumstances, potentially triggering a corresponding extension for upwind states.
The court said the agency could also try to show eliminating excess upwind emissions by the downwind deadline would be impossible, and consider upwind states' contributions and the cost of abating them when determining what constitutes a significant contribution to downwind NAAQS nonattainment.
"We express no opinion on whether or how any of these circumstances might apply to any action that the EPA might take on remand," the per curiam opinion stated.
The D.C. Circuit's Oct. 1 opinion was delivered by Judges Judith Rogers, Thomas Griffith and Gregory Katsas. State of New York v. EPA (No. 19-1019)
