Energy and Environment Reporting for Texas

Appeals Court Turns Down Cross-State Air Pollution Rule, EPA Must Revise

Photo by Brendan Smialowski/Getty Images

Texas Attorney General Greg Abbott joined dozens of others in challenging the EPA rule.

Just a week after a court victory against the Environmental Protection Agency (EPA), Texas Attorney General Greg Abbott has another notch in his belt. Today, an appeals court in Washington has ruled that the EPA violated the Clean Air Act with its Cross-State Air Pollution Rule (CSAPR), and now must revise the ruling.

It’s welcome news for Abbott, who just last week bragged that he likes to “sue the Obama administration” for fun. The state of Texas was joined by dozens of others, including some Texas power companies, in challenging the rule. Abbott quickly tweeted this:

The proposed rules (you can read more about them here) would limit pollution (sulfur dioxide and nitrogen oxide) from older coal power plants that ends up in other states. The rule would apply to 28 states, and would utilize a cap-and-trade system for the plants to come into compliance. Of particular concern to Texas were several aging coal plants that threatened to shut down because of the rule.

The EPA claims that if enacted, within two years, the rules would prevent “13,000 to 34,000 premature deaths, 15,000 nonfatal heart attacks,” and “400,000 aggravated asthma attacks.”

Why did the court vacate the EPA’s rule?

It said that agency had “exceeded its statutory authority” in enacting the rule. “Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable,” the ruling, which you can read below, states:

“Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.”

The 2-1 ruling also notes that in past cases, the court has sided with the EPA “numerous” times, “when those agency decisions met relevant statutory requirements and complied with statutory constraints.” The two judges in favor of the ruling are both Republican appointees (one of them a protege of Kenneth Star). The dissenting judge is a Democratic appointee.

Abbott’s office said a press release is forthcoming, but that no one there will be available to talk. (Update: You can read a roundup of various reactions, including Abbott’s, in this new post.)

In the meantime, the EPA’s 2005 Clean Air Interstate Rule will apply.

Read the full ruling:


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