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Clean-air rules are overturned by court
EPA overstepped authority, judges say
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Published: July 12, 2008
WASHINGTON - A federal appeals court threw out yesterday a major component of the Bush administration's effort to reduce unhealthy levels of soot and smog in Eastern and Midwestern states, a decision that environmental groups say will delay action on air pollution well into the next administration.
A three-judge panel on the U.S. Court of Appeals for the District of Columbia Circuit ruled unanimously that the Environmental Protection Agency had overstepped its authority in instituting a rule that would have established a cap-and-trade system for soot and smog.
The court ruling came on the same day that the administration said it would take no steps under the Clean Air Act to regulate greenhouse-gas emissions that contribute to warming, even though the EPA formally announced that it would ask for public comment on the matter. The Clean Air Interstate Rule (CAIR) rejected by the appeals court does not apply to such greenhouse gases as carbon dioxide, which is produced by burning fossil fuels.
The interstate rule represented the Bush administration's most aggressive action to clean the air over the next 20 years. The EPA estimated that the rule would help prevent 17,000 premature deaths and reduce levels of sulfur dioxide and nitrogen oxides by up to 70 percent by 2025. An unusual alliance of power companies and environmental groups supported the rule.
But the three-judge panel found that the EPA had committed "more than several fatal flaws" in creating the rule, which was challenged by several power companies and North Carolina for a variety of different reasons.
"No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule," according to the unanimous 60-page opinion issued by the D.C. circuit's chief judge, David B. Sentelle, and judges Judith W. Rogers and Janice Rogers Brown.
EPA Administrator Stephen L. Johnson said in a conference call with reporters that "we are extremely disappointed in the court's decision because it's overturning one of the most protective (air-pollution) rules in our nation's history ... We'll wait and see what our next steps are."
Environmental groups said that the decision will delay efforts to reduce harmful air pollution and leave tough decisions to be made by the next president and Congress.
"This is probably the biggest air-quality setback ever suffered by the EPA under any administration," said John Walke, the clean-air director for the National Resources Defense Council, an advocacy group.
Legislators who support tougher air-pollution standards said that the decision should help their efforts to pass legislation dealing with the problem.
"Our air isn't getting any healthier as we battle new clean-air regulations in the courts and Congress continues to stall in passing strong clean-air legislation," said Sen. Thomas R. Carper, D-Del., the chairman of the Senate Clean Air and Nuclear Safety Subcommittee. Carper has introduced legislation setting stricter limits on soot and smog than the Bush rule.
The interstate rule was one of the Bush administration's signature air-pollution policies. It would have required 28 states and the District of Columbia to make reductions in emissions of nitrogen oxides and sulfur dioxide from power plants.
It took a regional approach to the issue and established a cap-and-trade system that would have allowed utilities to sell and buy pollution credits as long as total industry emissions remained below a pre-set cap.
Although several environmental groups criticized the rule for not setting more aggressive pollution limits, they nevertheless welcomed it, saying they thought that it was the best they could expect from the Bush administration.
Many power companies also supported the rule because it was not as costly as some proposals pending in Congress. Even Duke Energy, which was one of the power companies that challenged the rule, said in a statement that it did not intend to have it overturned.
William M. Bumpers, a lawyer at Baker Botts LLP, said that most of the 20 or more electric- generating companies that his firm represents supported the rule.
Some of the companies have made large investments to upgrade their coal-fired plants, assuming that the rule would remain, Bumpers said. With the rule vacated, he said, companies would have to rethink their plans. "This is a train wreck for the EPA, and it's a train wreck for the environment," he said. "Companies have invested billions of dollars under this rule, and they're not very happy today."
However, not all power companies supported the EPA's action. Several, led by Duke Energy and Florida Power & Light Co., filed court challenges, arguing that the EPA did not have the legal right to establish its plan and that it had set pollution limits arbitrarily.
North Carolina attacked the plan from a different angle, saying that the program was not tough enough because utilities would be allowed to pollute more by buying credits.
The judges said that the EPA's regional cap system was flawed because it had not set any state-specific emissions requirements. It ruled that the "trading program is unlawful, because it does not connect states' emissions reductions to any measure of their own significant contributions."
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