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October 18, 2012
EPA appeals CSAPR vacatur

A 2 to 1 judicial decision to vacate EPA’s Cross-State Air Pollution Rule (CSAPR, August 8, 2011, FR) is an example of the court rewriting the “plain language” of the Clean Air Act, says the Agency in its petition to have the case reheard.  The petition is yet one more attempt by the EPA to lock in a major rule that will require upwind states to control emissions that contribute significantly to the inability of downwind states to attain the national ambient air quality standards (NAAQS). 

FIP and significant contribution

EPA’s petition addresses an August 21, 2012, decision by a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit that found in favor of nearly 100 petitioners, including major power companies, labor unions, and many state governments, who sought to overturn the CSAPR. 

The D.C. Circuit panel ruled that the EPA improperly issued a federal implementation plan (FIP) for the CSAPR after certain states did not make timely submittals of state implementation plans (SIPs) for the rule.  The court stated that the Agency could not require SIPs and therefore could not issue a FIP because it had not yet determined the statutorily required significant contributions of upwind states to downwind pollution.  Second, the panel ruled that the CSAPR was invalid because it could require that upwind states reduce their emissions beyond those that constitute significant contributions.

CAA rewrite?

In its petition to have the case reheard by all judges of the D.C. Circuit, the EPA first argued that the CAA requires states, within 3 years of promulgation of a new or revised NAAQS, to submit a SIP to the Agency, containing provisions to prohibit sources in the state from significantly contributing to nonattainment or interfering with maintenance of an NAAQS in other states.  Once a state fails to meet the SIP requirement, the Agency must issue a FIP.  According to the Agency’s lawyers, the panel majority attempted to rewrite the CAA by linking authorization for the FIP to determinations of significant contribution.  “Nothing in the statute requires EPA to make such a determination or imposes a deadline for EPA to do so,” says the EPA in its petition. 

Comment period

Regarding emissions reductions required of states, petitioners challenged EPA’s two-step analytical approach primarily on the grounds that the emissions reductions required as the result of the Agency’s cost-effectiveness analysis (the second step) might, theoretically, require a state to reduce its emissions below the first step screening threshold, a result Petitioners argued would exceed EPA’s statutory authority to regulate only “significant” contributions.  But this argument was not included in comments on the CSAPR proposal.  Instead, the panel made use of comments that were submitted when the Bush administration’s Clean Air Interstate Rule (CAIR) was proposed.

“This Court has heretofore strictly and consistently applied this provision to enforce repose in rulemaking proceedings and to ensure that agencies have the first opportunity to address alleged flaws,” stated the EPA in its petition.  “The panel’s casual approach … places the nearly impossible burden on agencies to intuit unstated objections to proposed rules based on the record in a universe of prior proceedings, and it tasks courts with adjudicating very complex regulatory challenges without the benefit of focused rulemaking comments and responses thereto. Moreover, it also tramples on the deferential standard of review normally due agency rules, especially on issues of statutory construction.”

Read the EPA petition to the D.C. Circuit here.

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