NRDC's Walke talks stay on cross-state rule, litigation on mercury standards

What are the environmental community's plans for litigation on U.S. EPA's new Utility MACT rule? During today's OnPoint, John Walke, clean air director and senior attorney at the Natural Resources Defense Council, discusses the possible legal and legislative challenges to EPA's mercury standards. He also discusses the significance of the D.C. Circuit Court's stay on the Cross State Air Pollution rule.


Monica Trauzzi: Hello and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is a John Walke, clean-air director and senior attorney at the Natural Resources Defense Council. John, thanks for coming on the show.

John Walke: Thanks for having me.

Monica Trauzzi: John, last week the DC Circuit Court stayed EPA's Cross-State Air Pollution Rule. This means the Bush air rule will stay in place. In the context of the broader conversation about the Obama EPA, is this a major loss or is this just an incremental challenge?

John Walke: It was disappointing, but a temporary setback. The court called for an accelerated briefing schedule, asking that the oral arguments occur by April, making very clear they understand the importance of resolving this soon. It came on the heels of the Mercury and Air Toxics Standards, which is a very significant achievement by the administration. So in the grand scheme of things, it's a disappointing setback, but we're going to make considerable progress based upon the standards adopted by the current administration.

Monica Trauzzi: But in terms of the actual rule and what's included in it, the court didn't actually rule on any of that.

John Walke: No, that's correct. The order was unaccompanied by any explanation or reasoning, so it's just speculation as to what led to the standards being blocked temporarily while the court hears the case. Frankly, with a rule that had a January 1 compliance date following adoption in the summer of 2011, the court probably thought to itself let's give ourselves time to hear this. Let's do it on an expedited basis so that we can resolve this soon. For a rule that will save up to 34,000 lives annually, obviously, you don't want those health gains lost. But in the grand scheme of things, the rule will still be upheld I believe and it should allow continued implementation by the end of 2012 at the earliest or possibly 2013.

Monica Trauzzi: What's your take on the current rule that's in place that the court ordered should stay in place for the time being?

John Walke: Well, it's a good question. There's one thing that's important to bear in mind, the Clean Air Interstate Rule that is in place now as a result of the court order was itself declared unlawful in 2008. It was declared unlawful because it was insufficiently protective of downwind communities that are suffering from out-of-state smog and soot pollution. So regardless of the outcome of this litigation over the cross-state rule, there is a standing order and a directive to the EPA to strengthen those standards. That means that there will be deeper smog and soot reductions from coal burning power plants than are provided for under the Clean Air Interstate Rule. The question is only a matter of timing. Will that be achieved by the current cross-state rule on the schedule set forth by the current administration or will the standards instead be remanded to EPA to be strengthened on a future schedule?

Monica Trauzzi: Do you think there's a general sense in the U.S. that this EPA needs to be slowed down a bit because they are moving very aggressively with new air regulations and, if so, could that sort of -- could we read in the tea leaves that the court may come down on this rule and rule that EPA should not move forward with it?

John Walke: That view is not supported at all by endless polls that have been done by public health groups and other organizations. That is a prevailing view among Republicans in the House of Representatives who have been pursuing an agenda that is out of sorts with the wishes of the American people. But there are -- in fact, our polling and other polling shows that there is an even greater desire for public health laws, pollution laws to be enforced and to be strengthened because there is a belief that they are not doing enough to reduce pollution. As an attorney, I honestly don't believe that courts are influenced by the popular or political perceptions of the day based on the rhetoric of a competing political party. I think that whether the judges are liberal or conservative or moderate on this particular court and others, that they apply the law as they believe it should be enforced and we shall see when the merits are reached, because the merits have not been reached yet in this proceeding. We shall see if the court upholds the standards based upon what the Clean Air Act requires and I firmly believe that they will.

Monica Trauzzi: I want to switch gears and talk about utility MACT, which you mentioned at the top. EPA announced the new rule and there's been talk about legal challenges already and I'm curious to know how you will come down on that and whether a group like NRDC and the environmental community will litigate on the rule.

John Walke: Let me say first no decisions have been made on that front, but I believe that there will be strong support for the standards by the environmental and public health community that will undoubtedly result in intervention on EPA's behalf in opposition to the inevitable industry lawsuits challenging the standards. Virtually every clean-air rulemaking affecting the power sector has been litigated by the utility industry and I would expect that to occur here. There are some aspects of the final standards that NRDC or another environmental group wouldn't have authored themselves were they in that position, but that doesn't necessarily lead any one of those groups to challenge the rule based upon a balance of competing factors. So, honestly, those decisions have not been made yet, but I think that certainly NRDC will intervene on EPA's behalf and then other decisions will be made in the future.

Monica Trauzzi: Were there some lessons learned from the last go around on mercury rules and the litigation that ensued as a result?

John Walke: Well, one good lesson about litigation in this court, the DC circuit Court of Appeals, is if any given administration flouts the plain language of the law, that rule is in serious jeopardy and probably will be overturned. That was the case time and time again under the Bush administration. What's interesting about these rules is they may have challenges based upon technical claims, procedural claims, but it's notable that in the cross-state rule and the papers filed thus far, as well as the expected litigation over the Mercury and Air Toxics Standards, there are not the same type of claimed violations of the plain language of the statute the way those deficiencies were so evident under the prior administration. So, it will be interesting to see how that type of litigation plays out in the DC Circuit in the absence of those type of plain language violations.

Monica Trauzzi: So, let's talk bigger picture for a moment. What are the key EPA related battles you see developing over the next eight months as we head towards the November elections?

John Walke: Well, I think you can break it down into categories. You have the standards that were adopted last year dealing with the power sector and smog, soot and toxic pollution. You will obviously see battles in the courts with respect to both those standards. I think you will see continuing fights and struggles in Congress to try to unblock or reverse those protections. On the administrative front at the Environmental Protection Agency there are forthcoming standards on carbon standards for power plants, there are fracking regulations, there are car standards. The agency still has a year's agenda to carry out in conformance with the law and you'll probably see the same type of scuffle surrounding those rules that you saw in 2011 at EPA surrounding the power plant rules.

Monica Trauzzi: Sitting here today, would you endorse President Obama for reelection with the same amount of vigor as during the last election?

John Walke: Well, NRDC doesn't take positions on elections, so I can happily disclaim any response or position on that question.

Monica Trauzzi: All right, we'll end it right there. I tried.

John Walke: You did.

Monica Trauzzi: Thanks for coming on the show.

John Walke: Thanks so much Monica.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

[End of Audio]



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