By Danielle Baussan and Jackie Weidman
On Tuesday, the US Court of Appeals struck down the Cross-State Air Pollution Rule (CSAPR), blocking limits to harmful air pollution. The measure would have limited sulfur dioxide and nitrogen oxide pollution, the main ingredients of acid rain and smog.
Each year, these regulations would prevent up to 34,000 premature deaths and hundreds of thousands of cases of aggravated asthma (see Table 1). It was estimated to provide up to $280 billion in annual economic benefits through health and environmental improvements alone.
Carol M. Browner, Former EPA Administrator and Distinguished Senior Fellow at the Center for American Progress, said:
“Nobody can dispute the public health benefits of preventing harmful pollutants like sulfur dioxide and nitrogen oxides from crossing state lines and impacting air quality for millions of Americans. Congress’ intent was that polluting states be held accountable for reducing cross-state air pollution.”
The ruling creates a huge amount of uncertainty for the power plant industry, which will have to act in limbo until a new rule can be promulgated. The ruling endangers public health for all Americans. Air pollution doesn’t stop at state borders. Once created, it quickly travels to neighboring communities and states – as far as hundreds of miles downwind.
In 2004, the Bush Administration decided to address this issue. EPA proposed the Clean Air Interstate Rule, requiring states to be “good neighbors” by prohibiting upwind states from increasing downwind states’ pollution limits and jeopardizing downward State CAA compliance.
However, a federal appeals court struck down CAIR in 2008. CAIR was permitted to continue with the understanding that it would be replaced by a new rule. CAIR’s replacement, the Cross-State Air Pollution Rule (or CSAPR) was proposed by EPA in 2010 and finalized in 2011. CSAPR required EPA to identify upwind states that significantly contributed to SO2 and NOx pollution in downwind states. If a state was not “a good neighbor” and significantly contributed to downwind air pollution, all the power plants in that upwind state were required to cut emissions using a cost formula.
The U.S. Court of Appeals agreed that an upwind state should be held responsible for its contributing pollution in downwind states. However, it found that:
- EPA’s regional air modeling made it possible for an upwind State to disproportionately limit more pollution than was necessary under the “good neighbor” rule;
- EPA did not adequately factor a downwind state’s own pollution in determining CSAPR limits; and
- EPA could not form a federal implementation plan before states had the opportunity to develop their own plan to meet pollution limits.
The dissenting judge, Judith Roberts, wrote that the majority opinion chose to ignore case law that upheld disproportional pollution limits and that there were no technical grounds for some of petitioner’s arguments.
She said that vacating the rule results in “the endorsement of a ‘maximum delay’ strategy for regulated entities, rewarding states and industries for cloaking their objections throughout years of administrative rulemaking procedures.”
Utilities suing over CSAPR emitted 6.5 billion pounds of smog and acid rain pollution in 2010 alone. This is equivalent to nearly 22 pounds for every man, woman and child in the United States.
The companies that are fighting the EPA over this rule and others are some of the biggest polluters in the nation. They make billions of dollars in profits, and spend tens of millions on misleading ads, campaign contributions and lobbying Congress in a multilateral battle against public health.
Today’s ruling leaves the older, Clean Air Interstate Rule in place to reduce SO2 and NOx emissions. However, this system is an imperfect process because it doesn’t adequately protect public health through limits to pollution that travels beyond state borders.
For now, Americans will continue to pay the price of this pollution. John Walke, clean air director with the Natural Resources Defense Council, urges that the EPA immediately appeal this decision. NRDC notes that if the decision is not overturned, it will take years for the EPA to adopt replacement safeguards that are required by law.
As Carol Browner said:
“The court’s decision highlights the struggles of both the Bush and Obama administrations with implementing this rule. The public health benefits are too great and the risks too severe to abandon the effort to reduce cross state air pollution and democrats and republicans, the administration and Congress should work together to find the right way forward.”
Danielle Baussan is the Associate Director for Government Affairs at the Center for American Progress and Jackie Weidman is a Special Assistant with CAP’s Energy Team.