Court Reinstates Clean Air Interstate Rule

December 23, 2008

(Tuesday, December 23, 2008) In a major decision benefiting clean air and public health, the U.S. Court of Appeals for the D.C. Circuit today issued an order that leaves the Clean Air Interstate Rule in effect while the U.S. Environmental Protection Agency develops a new clean air program for power plants. 

“Today’s court decision is a welcome gift for the millions of American’s that face serious health threats from power plant pollution. Power plants across the East will reduce millions of tons of smog and soot pollution today while America’s new leadership fixes the mistakes made by the Bush Administration,” said Vickie Patton, deputy general counsel at Environmental Defense Fund.
Granting aspects of rehearing requests from the Environmental Protection Agency, Environmental Defense Fund and Natural Resources Defense Council, the court found that the rule is an “integral action” and stated:  
“Here, we are convinced that, notwithstanding the relative flaws of CAIR, allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR.”  
Judge Judith Rogers wrote a separate concurrence stating that CAIR is “so intertwined” with the nation’s air quality management regulatory framework that “its vacatur would sacrifice clean benefits to public health and the environment while EPA fixes the rule.” 
The timing of this decision is critical.   January 1, 2009 is the first important compliance deadline under EPA’s Clean Air Interstate Rule — requiring substantial reductions in year-round emissions of nitrogen oxides (NOx) to protect human health from this damaging pollutant.   The U.S. Environmental Protection Agency, Environmental Defense Fund, and numerous states asked the court to reconsider its July 11th opinion to vacate this clean air program.    The program was designed to reduce millions of tons of smog- and particulate-forming pollution from coal-fired power plants in 28 eastern states.  
EPA estimated the rule would prevent 17,000 deaths annually by 2015.   The pollution cuts required by the Clean Air Interstate Rule were to be implemented in two phases beginning on January 1, 2009 for NOx and 2010 for sulfur dioxide (SO2), and a second phase in 2015 for both contaminants.   EPA estimated that NOx would be reduced 2 million tons annually under full program implementation, about 60% over today’s levels.   The program was designed to cut SO2 emissions by 5.4 million tons in 2015.