Court orders EPA to consider curbs on interstate emissions

U.S. EPA must reconsider whether to force states to curb air pollution that drifts into North Carolina as the agency works under court orders to redo a Bush administration plan to cut interstate pollution, a federal appeals court decided yesterday.

North Carolina had sought EPA assistance in 2004 under the Clean Air Act's Section 126, which addresses emissions drifting across state lines. But the agency denied the request, saying the Bush administration's signature rule for reducing power plant pollution would help North Carolina meet its pollution targets by reducing emissions elsewhere.

The Bush-era Clean Air Interstate Rule (CAIR) was tossed out by the U.S. Circuit Court of Appeals for the District of Columbia last July. The court temporarily reinstated the rule in December but demanded that EPA work quickly to develop a replacement.

EPA asked the court last month to remand North Carolina's 126 petition to the agency for review.

EPA had conceded that the court's decision to send CAIR back for revision "eliminated the legal basis for EPA's denial of North Carolina's Section 126 petition with regards to [fine particulate matter]," the court said yesterday. EPA had also decided that it would voluntarily reconsider its denial of North Carolina's Section 126 petition regarding ozone pollution, the court ruling said.


In 2006, North Carolina sued EPA over the agency's denial of its petition. North Carolina Attorney General Roy Cooper (D) insisted EPA's plans would not clean up his state's air fast enough or as effectively as would his state's own law (E&ENews PM, June 27, 2006).

In its Section 126 petition to EPA, North Carolina targeted Alabama, Georgia, Illinois, Indiana, Kentucky, Maryland, Michigan, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia and West Virginia as states whose power plants contribute to its pollution problems.

Environmental groups celebrated the court decision as forcing EPA to address interstate emissions.

"I think this is a very important decision, not just for North Carolina but just for the sake of the integrity of the Clean Air Act," said John Suttles, a senior attorney at the Southern Environmental Law Center who represented the Sierra Club and Environment North Carolina in the case.

"The court clearly directed EPA to require upwind sources to quickly and effectively clean up their power plants," Suttles said.

Industry attorney Jeff Holmstead, who was EPA's air chief under President George W. Bush, said the decision was no surprise.

"I don't think it's a huge deal, because EPA had asked for the remand," Holmstead said, "and I think everybody knew that in light of the CAIR decision that this issue would also have to be remanded."

Click here to read the decision.

Click here to read EPA's request to the court to remand North Carolina's Section 126 petition.

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