Appeals Court Keeps the Cross-State Air Pollution Rule in Place, Directs EPA to Conduct Additional Analyses

(Washington, D.C. – July 28, 2015) Today the U.S. Court of Appeals for the D.C. Circuit rejected legal claims by Texas and other states to vacate the U.S. Environmental Protection Agency’s (EPA) Cross-State Air Pollution Rule and its life-saving clean air protections.

The D.C. Circuit Court decision recognizes that, when the Supreme Court upheld the Cross-State Air Pollution Rule in April of 2014, it affirmed EPA’s fundamental methodology for implementing the “good neighbor” protections of the Clean Air Act. Today the D.C. Circuit Court granted claims by Texas and other states challenging particular emissions budgets while firmly rejecting associated requests to vacate the state-based emissions protections and rejecting several additional fundamental legal claims. 

The court directed EPA to carry out additional analyses on remand, stating, “We remand without vacatur to EPA for it to reconsider those emissions budgets. We reject all of petitioners’ other challenges to the Transport Rule, including all of their facial challenges to the Rule. (Decision, page 36, emphasis added)

The rule’s life-saving pollution reductions remain in full effect. 

“The Cross-State Air Pollution Rule will continue to protect 240 million Americans from dangerous smokestack pollution in upwind states,” said EDF attorney Graham McCahan, who argued the case in its remand phase. “The Cross-State Air Pollution Rule is already helping to ensure healthier and longer lives for millions of Americans, including the children at risk of increased asthma attacks.”

The U.S. Environmental Protection Agency (EPA) issued the Cross-State Air Pollution Rule under the “good neighbor” provision of the Clean Air Act. The rule will reduce the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone — more commonly known as soot and smog — drift across the borders of those states and contribute to dangerous, sometimes lethal, levels of pollution in downwind states. 

Opponents challenged the rule in EME Homer City Generation v. EPA. The D.C. Circuit Court overturned the rule in 2012, but the Supreme Court reversed the D.C. Circuit’s decision in a 6-to-2 ruling in April 2014. The High Court also remanded parts of the case to the D.C. Circuit Court so it could rule on some remaining state-specific issues.

Texas and several other states raised further legal claims on remand and asked the D.C. Circuit court to vacate the entire rule. Today, the court rejected that request. 

You can read all the legal briefs in the case and read more about the Cross-State Air Pollution Rule on EDF’s website.