Divided U.S. Appeals Court Rejects EPA Air Protections For 240 Million Americans

As many as 240 million Americans will lose new protections against dangerous smog and soot pollution after a sharply divided federal appeals court today struck down Environmental Protection Agency safeguards designed to reduce power plant air pollution that crosses state lines. A powerful dissent thoroughly criticizes the two-judge majority ruling.

"This decision allows harmful power plant air pollution to continue to aggravate major health problems and foul up our air. This is a loss for all of us, but especially for those living downwind from major polluters," said John Walke, clean air director at the Natural Resources Defense Council.

"This rule would have prevented thousands of premature deaths and saved tens of billions of dollars a year in health costs, but two judges blocked that from happening and forced EPA to further delay long overdue health safeguards for Americans."

"The EPA can - and should - immediately appeal this decision. The dissenting judge correctly follows the Clean Air Act and prior rulings by this court. The majority opinion is an outlier at odds with the court's own rulings as well as the Clean Air Act," Walke said.

Absent this decision being overturned, it will take years for EPA to adopt replacement health safeguards that all three judges recognize to be necessary and required by law.

In an opinion issued today, two judges on a three-judge panel for the U.S. Court of Appeals for the District of Columbia rejected and vacated EPA's Cross-State Air Pollution Rule. This safeguard was finalized in July, 2011, and required 28 states in the East, Midwest, and South to reduce emissions of sulfur dioxide (SO₂) and nitrogen oxides (NO_x) that cross state lines and worsen air quality in downwind states.

In a small consolation for communities plagued by smog and soot pollution, the ruling left in place the Bush administration EPA's Clean Air Interstate Rule that the court ruled unlawful in 2008. That rule has remained in place since 2008 but provides inadequate protections to tens of millions of Americans. In overturning the Cross-State Air Pollution Rule today, the judges sent EPA back to the drawing board to craft new health safeguards to protect Americans against power plant smog and soot pollution transported across state lines. Even the majority decision recognized Americans are being denied safeguards guaranteed by the Clean Air Act, but the majority ruling reflected the mistaken view that EPA had reduced harmful air pollution by too much.

Judge Brett Kavanaugh authored the decision and was joined by Judge Thomas Griffith. Judge Judith Rogers dissented in a blistering, 44-page critique of the majority opinion:

To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act ("CAA"), and this court's settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did. The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress's vision of cooperative federalism between the States and the federal government in implementing the CAA based on the court's own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court's precedent on which the Environmental Protection Agency ("EPA") was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court.

https://www.cadc.uscourts.gov/internet/opinions.nsf/19346B280C78405C85257A61004DC0E5/$file/11-1302-1390314.pdf, at 61 et al.

For more background information on the rule before it was overturned, see this blog post from John Walke: https://switchboard.nrdc.org/blogs/jwalke/240_million_americans_will_bre.html