Tuesday, January 3, 2012

D.C. Appeals Court Stays Cross-State Air Pollution Rule

Dec 30: In one of the last official judicial environmental actions of 2011, the United States Court of Appeals for the D.C. Circuit issued a ruling to stay U.S. EPA's controversial Cross-State Air Pollution Rule (CSAPR) finalized on July 6, 2011, and published in the Federal Register on August 8, 2011 [See WIMS 7/7/11]. According to the 2-page Court order issued on December 30, the CSAPR, which just became effective on October 7, 2011, is now on hold pending judicial review until at least April 2012.

    On October 6, EPA signed a proposed rule, seeking comment on significant revisions to the final CSAPR [See WIMS 10/7/11]. In a separate, but related, regulatory action, EPA finalized a supplemental rulemaking on December 15, 2011 to require five states -- Iowa, Michigan, Missouri, Oklahoma, and Wisconsin -- to make summertime NOx reductions under the CSAPR ozone season control program. CSAPR requires a total of 28 Eastern states to reduce annual SO2 emissions, annual NOx emissions and/or ozone season NOx emissions to assist in attaining the 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS). CSAPR replaced EPA's 2005 Clean Air Interstate Rule (CAIR). A December 2008 court decision kept the requirements of CAIR in place temporarily but directed EPA to issue a new rule to implement Clean Air Act requirements concerning the transport of air pollution across state boundaries.

    The case, EME Homer City Generation, L.P. v. EPA with the American Lung Association, et al. as Intervenors, Case No. 11-1302 is consolidated with 44 other petitions. Among other items, the Court order indicates, ". . .the motions to stay be granted. The Environmental Protection Agency's 'Federal Implementation Plans: Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals; Final Rule,' 76 Fed. Reg. 48,208 (August 8, 2011), is stayed pending the court's resolution of these petitions for review. Petitioners have satisfied the standards required for a stay pending court review. . . Respondent is expected to continue administering the Clean Air Interstate Rule pending the court's resolution of these petitions for review."
    The Appeals Court ordered further, "that the parties submit by January 17, 2012, proposed formats and schedules for the briefing of these cases that would allow the cases to be heard by April 2012. The parties are strongly urged to submit a joint proposal and are reminded that the court looks with extreme disfavor on repetitious submissions and will, where appropriate, require a joint brief of aligned parties with total words not to exceed the standard allotment for a single brief. The parties are directed to provide detailed justifications for any request to file separate briefs or to exceed in the aggregate the standard word allotment. Requests to exceed the standard word allotment must specify the word allotment necessary for each issue."
    Access the Appeals Court order (click here). Access EPA's CSAPR website for complete background and details (click here). [#Air, #CADC]

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