DC Circuit blocks cross-state air pollution rule

An EPA regulation aimed at limiting emissions of sulfur dioxide and nitrogen oxide from power plants in 27 states was blocked Friday by a federal appeals court.

The transport rule, as the regulation is formally known, is the subject of at least three dozen lawsuits filed by electric utilities, other industrial interests, a labor union, and the state of Texas.

The petitioners main argument against the regulation is that it allows them too little time to comply with expensive requirements to come into compliance with pollution limits. They also argue that the cross-state pollution rule unlawfully permits EPA to impose emission limits before the states have had the opportunity to do so.

The latter argument is based on language in the Clean Air Act that seems to limit the use of a federal implementation plan (the acronym for a U.S. government program to limit air pollution with a particular state) to situations where a state has not come up with its own plan or the state's plan is inconsistent with the requirements of the federal air pollution law.

The rule would permit polluters to obtain allowances by purchasing them from competitors, but the opponents of the transport rule have urged the District of Columbia-based appeals court to find that the financial expense necessary to gain such permission to pollute would be too great of a harm to utilities.

Aimed at facilities that produce pollutants that travel in the atmosphere across state lines, the rule would likely force the closure of some older, coal-fired power plants. If implemented, it would force violators to switch to fuels that pollute less, such as natural gas, or install control technology.

“Petitioners have satisfied the standards required for a stay pending court review,” U.S. Court of Appeals for the District of Columbia Circuit judges Brett Kavanaugh, Thomas Griffith and Janice Rogers Brown said in a terse order.

The court's action does not permanently block implementation of the cross-state emissions rule. Instead, it prevents EPA from enforcing it until the compatibility of the rule with federal statutory law is determined.

Oral arguments on the petitions for review of the rule have not been scheduled, but the order released Friday indicates that the court may hear them by April.

Sulfur dioxide is a pollutant that leads to acid precipitation and harmful soot, while nitrogen oxide is a central component of smog and a large contributor to ground-level ozone.

EPA says that the cross-state pollution rule would help to prevent an estimated 13,000-34,000 premature deaths annually by 2014 and reduce hospital and emergency room visits by 19,000 per year.

Coal incineration for electricity production is the source of 98 percent of sulfur dioxide air pollution and 92 percent of nitrogen oxide air pollution released by power plants, according to EPA.

Among states, Texas is the largest consumer of electricity and most of that electricity is produced by burning coal. The state's per capital electricity use is also significantly higher than the national average.

Even if the challengers to the cross-state pollution rule prevail, and EPA is forced to re-draft the rule, power plant operators will likely face the necessity of investing in additional or improved pollution control technology due to a recently-finalized rule limiting emissions of mercury and other toxic air pollutants.

That regulation was finalized in December and will go into effect in 2015.

Brown, Griffith, and Kavanagh were appointed to the Washington, D.C.-based appeals court, which is often assigned by statute to hear challenges to the legality of federal regulations, by former President (and Texas governor) George W. Bush.

The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, No. 11-1302.