With the D.C. Circuit’s decision on Tuesday (7/28) on the Cross State Air Pollution Rule ("CSAPR"), some of the last remaining roadblocks to EPA's attempts to address crossboundary air pollution in the eastern half of the United States have been removed, finally granting certainty to when CSAPR will go into effect, albeit in a way that raises some questions as to how pollution will be reduced.
CSAPR is, of course, EPA's programmatic attempt to address chronic air quality problems from ozone and particulate matter afflicting some 240 million Americans. Under the Clean Air Act, states are generally in charge of regulating their own sources of air pollution, but--despite the fact that the Act requires them to so do -- they have traditionally done a poor job of addressing the air pollution those sources send to other states. Air pollution doesn't respect state lines, and so EPA traced pollution trends from polluting states to polluted states, and then set emission budgets for power plants in polluting states in order to correct the problem. Originally promulgated in July 2011, CSAPR is projected to save up to 38,000 lives annually, but its implementation has been delayed for years by litigation.
On remand from the Supreme Court (where the Supremes reversed the D.C. Circuit's original erroneous ruling that CSAPR was contrary to the Clean Air Act), the D.C. Circuit considered "as applied" challenges to the Rule: conceding that CSAPR itself was legal, the Court examined the specific emission budgets CSAPR afforded to certain states, and determined that many of those budgets were too restrictive. However, while the Court invalidated those budgets, it declined to vacate them. Thus, they are still in effect, pending reconsideration by EPA.
This sets up a rather strange situation. Emission markets and the power industry are already planning on the emission budgets, scheduled to go into effect January 1, 2017, but those budgets will likely change, as EPA is expected to begin a rulemaking to adjust the budgets consistent with the Court order. And, the more contentious and drawn-out that rulemaking is, the more likely that it won’t be completed in time to replace the 2017 budgets.
This is familiar territory for the D.C. Circuit: in vacating CSAPR three years ago, the Court ordered EPA to keep in place the prior Clean Air Interstate Rule ("CAIR") in the meantime, despite the fact that the D.C. Circuit had previously ruled that CAIR was invalid. Here, however, further challenges to CSAPR's pollution budgets may, ironically, ensure that the budgets the D.C. Circuit invalidated are the ones that go into effect.
The upside of all of this appears to be that the basic structure of CSAPR is finally, after nearly four years of litigation, legally vindicated. This is important not just in securing the significant health protections of the Rule, but also in providing EPA a roadmap for future attempts to address interstate air pollution.