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Court refuses to reconsider coal air pollution ruling
January 28, 2013

The U.S. Court of Appeals for the District of Columbia Circuit denied a request by the U.S. Environmental Protection Agency (EPA) to reconsider its decision to strike down regulations aimed at cutting cross-state pollution from coal-fired power plants.

The EPA, several states, cities, environmental groups, public health groups, and utilities that use clean fuels asked the court to rehear the case Oct. 5. The denial means the only avenue of appeal left open to the agency is before the U.S. Supreme Court, Bloomberg reported.

The Cross-State Air Pollution Rule, which EPA issued in July 2011, would require 28 states in the East, Midwest and South to reduce power plant emissions of nitrogen oxides and sulfur dioxide that cross state lines. The rule, at 40 C.F.R. parts 51, 52, 72, 78, and 97 was intended to help downwind states meet national ambient air quality standards for ozone and fine particulate matter.

Seven judges voted on the question of rehearing, but the court did not disclose how the judges voted. EPA would have needed four of the seven judges to agree to rehearing.

Opponents of the rules included the state of Texas, the National Mining Association and the International Brotherhood of Electrical Workers. The 2011 Cross-State Air Pollution Rule (CSAPR) or the Transport Rule defined emissions reduction responsibilities for 28 upwind states based on those states’ contributions to downwind states’ air quality problems.

The court said the rule may have required upwind states to reduce their emissions by more than their “significant contributions” to a downwind state’s nonattainment.

“EPA is disappointed that the Court did not grant EPA’s petition for rehearing,” the agency said in a statement to Bloomberg. “The agency is reviewing the decision and will determine any appropriate further course of action once the review is complete.”

The Clean Air Interstate Rule, a regulation issued under the Bush administration that also aims to address pollution that crosses state lines, remains in effect because of the vacatur of the cross-state rule.

“[N]o immediate action from States or affected sources is expected at this time,” the agency said. “EPA remains committed to working with States and the power sector to address pollution transport issues as required by the Clean Air Act.”


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