[OPINION] EPA must appeal cross-state air pollution rule

By Danielle Baussan

Climate Progress

Call it the “Goldilocks Conundrum.”

Four years ago, the D.C. Circuit Court of Appeals struck down the George W. Bush-era Clean Air Interstate Rule for not sufficiently protecting downwind states from upwind soot and smog. However, in August, the same court determined that the Obama Administration’s Cross State Air Pollution Rule isn’t protecting upwind states from having to reduce pollution too much.

While the DC Circuit Court waits for the porridge to be “just right,” public health suffers due to unchecked air pollution.

That’s because the rule, known as CSAPR, is just right, and an appeal to this faulty decision should be filed by the Environmental Protection Agency. An appeal or rehearing must be filed by October 5th, but EPA has not yet done so, leaving the public and power plant owners wondering if it will fight to save CSAPR or re-start the multi-year process for a new rule.

Let’s look at the legal background on this important issue.

On August 21st, the U.S. Court of Appeals struck down the Cross State Air Pollution Rule (CSAPR) in EME Homer City Generation, L.P.  vs. EPA. CSAPR was designed by EPA to prevent 34,000 premature deaths and 400,000 asthma attacks each year. The rule would have helped downwind states by limiting sulfur dioxide and nitrogen oxide pollution coming from power plants in upwind states.  These pollutants are the main ingredients in soot and smog, and the rule would have improved the health of millions of Americans (see table).


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