Millions Of Americans Left Unprotected From Smokestack Pollution After Court Ruling

In late JAnuary, the U.S. Court of Appeals for the District of Columbia Circuit denied petitions for rehearing en banc of the Cross-State Air Pollution Rule– a historic pollution reduction measure that would have protected air quality for 240 million Americans across the Eastern United States and saved up to 34,000 lives each year. The rule was created by the Environmental Protection Agency (EPA) under the “good neighbor” protections of the Clean Air Act.  

“We urge EPA, states and cities alike to take corrective action and secure healthier, longer lives for millions of Americans,” said EDF General Counsel Vickie Patton. “The states and cities afflicted by power plant pollution can and should petition EPA under the nation’s clean air laws to safeguard the health of their citizens.”   

Earlier, on August 21st, a deeply divided three-judge panel of the court vacated and remanded the Cross-State Air Pollution Rule to EPA.

Three petitions were filed asking the full court for a rehearing. EDF — joined by the American Lung Association, Clean Air Council, Natural Resources Defense Council, and Sierra Club – filed one of the petitions in support of the Cross-State Rule. EPA also filed a petition, as did a coalition of 15 states and cities (North Carolina, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New York, Rhode Island, Vermont, Baltimore, Bridgeport, Chicago, New York City, Philadelphia, and Washington, D.C.).

The Cross-State Air Pollution Rule would have reduced 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.   

The Cross-State Air Pollution Rule would have reduced power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. 

EPA issued the Cross-State Air Pollution Rule under the “good neighbor” protections of the Clean Air Act, which ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states. While no one is immune to these impacts, children and the elderly in downwind states are especially vulnerable. 

EPA estimated the Cross-State Rule would have: 

  • Saved up to 34,000 lives each year
  • Prevented 15,000 heart attacks each year
  • Prevented 400,000 asthma attacks each year
  • Provided up to $280 billion in health benefits for America each year  

Judge Kavanaugh wrote the opinion of the court when the three-judge panel ruled in August, joined by Judge Griffith. (The court’s opinion expressly left in place the existing Clean Air Interstate Rule pending EPA’s further action.)

Judge Rogers vigorously dissented, arguing Judge Kavanaugh’s opinion represented a “trampling on this court’s precedent on which the Environmental Protection Agency (‘EPA’) was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court.”  (from the Dissent Opinion at page 1)
Judge Rogers further explained, “The result is the endorsement of a ‘maximum delay’ strategy for regulated entities, rewarding States and industry for cloaking their objections throughout years of administrative rulemaking procedures and blindsiding the agency with both a collateral attack on its interpretation of section 110(a) and an objection raised for the first time in this court.” (from the Dissent Opinion at page 43).

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