AIR POLLUTION

Partial redo ordered on Obama EPA 'good neighbor' rule

EPA must go back to the drawing board on part of its Cross-State Air Pollution Rule update, a panel of federal judges ruled today.

The U.S. Court of Appeals for the District of Columbia Circuit sided with environmentalists' claim that the Obama-era Cross-State Air Pollution Rule (CSAPR) update is inconsistent with Clean Air Act attainment deadlines but tossed other arguments.

The regulation, which the Trump administration defended, was designed to reduce coal-fired power plant pollution that drifts across state lines and causes ozone problems for downwind neighbors. It targets emissions of nitrogen oxides in 22 states whose own plans to reduce cross-state pollution fell short of EPA's standards.

EPA's rule "allows upwind States to continue their significant contributions to downwind air quality problems beyond the statutory deadlines by which downwind States must demonstrate their attainment of air quality standards," the court found.

"In all other respects, though, we determine that EPA acted lawfully and rationally."

The judges declined to scrap the rule but said environmental challengers can bring a new petition to the D.C. Circuit if EPA does not modify the regulation to reflect the court's finding.

EPA's efforts to regulate cross-state pollution under the Clean Air Act's "good neighbor" provision have spent years in the courtroom.

The agency first crafted a rule in 2005, but it was tossed three years later for being too weak. The Obama administration unveiled a replacement in 2011, but that ran into legal trouble at the D.C. Circuit where then-Judge Brett Kavanaugh authored an opinion striking it down.

The Supreme Court later reversed Kavanaugh and sent the case back to the appeals court. During its second review, the D.C. Circuit upheld the rule but found EPA had set state limits that were too stringent in some instances.

Obama officials addressed the court's concerns in the 2016 CSAPR update, which aimed to reduce emissions that make it harder for downwind states to meet EPA's 2008 threshold of 75 parts per billion for ozone — a standard that has since been tightened.

Downwind states and environmentalists criticized the program as inadequate to address ground-level ozone in neighboring states. Upwind states and power producers say the update overregulates by setting state caps on nitrogen oxides.

The regulation is one of the few Obama-era EPA rules the Trump administration has defended in court.

The D.C. Circuit heard oral arguments in October (Greenwire, Oct. 3, 2018).

Reporter Pamela King contributed.

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