A recent federal court ruling to delay U.S. Environmental Protection
Agency plans to enforce tougher clean air standards for power plants,
has left both critics and defenders wondering whether the decision did
in fact signal the death knell for implementation of the new rules.
On December 30, the U.S. Court of Appeals for the D.C. Circuit granted a stay of the EPA’s Cross-State Air Pollution Rule, which would have required power plants in 27 states beginning January 1 to comply with new regulations designed to reduce sulfur dioxide and nitrogen oxide emissions.
Opponents of the new standards - which include a coalition of power
companies, industry advocates as well as the state of Texas, have been
among a host of challengers who have sued the agency in an effort to
block the rule from going into effect.
The court did not provide an explanation for its decision, leaving observers such as National Resource Defense Council Director and Senior Attorney John Walke to speculate that the reason may have had something to do with the amount of time in which companies were given to comply with the standards.
“My belief is one strong factor likely was the eminence of the January 1 compliance date that followed on the heels of the rules being adopted in the summer of 2011,” Walke said. “By Clean Air Act historic standards, that is a short period of time between adoption of standards and expected compliance.”
Walke acknowledged it was uncommon for the court to grant a stay request of EPA regulation, recalling only two other cases in the last 20 years where it had occurred. He cautioned however that the decision should not be interpreted as an indication of how the court will eventually decide once the merits of the rules are argued.
“Industry critics of the standards would not be wrong in claiming that the court has weighed whether it believes that the standards could be upheld on the merits,” Walke said. “But neither I, nor industry commenters could say with any reliance that the court has already made up its mind about the merits – that’s just not something you could read into a stay order.”
But as Loyola University Chicago Environmental Law Professor David Rieser saw it, the court’s ruling could be viewed by CSAPR opponents as a favorable sign that their challenge of the rule could be successful.
“There is a sense in the fact that they issued the stay and made the finding that there at least is a likelihood that they will find in favor of the plaintiffs who are seeking to overturn the rule,” Rieser said. “That’s not iron-clad, it just means that based on the information they had at the time they issued the stay ruling, they think it’s better for everybody if things stay at the status quo … it’s really more a vote for the status quo than it is a statement they will definitely overturn the rule.”
The status quo - as it currently stands – keeps in place standards originally set by the Bush administration’s 2005 Clean Air Interstate Rule, which sought to cap toxic power plant emissions throughout the eastern U.S. Though it was eventually vacated by the court in July 2008, it was decided that the standards would be kept in place temporarily pending new regulation.
The EPA has contended rules such as CSAPR, as well as the recently implemented Mercury and Air Toxics Standards for power plants, will have significant environmental and health benefits, estimating it could save Illinois as much as $12 billion in avoided health care costs by 2014 and prevent more than 40,000 premature deaths throughout the U.S. each year.
Opponents, however, have argued the rules would be harmful for the country’s economy and would severely damage the power industry, leading to the closure of some facilities, mass layoffs, higher electricity bills, and possible disruptions to service.
“We criticized the analysis the EPA did on the Cross-State Rule because we think that they greatly exaggerated the benefit the rule would have for mercury and other toxic-emission reductions,” said Luke Popovich, vice president of the coal mining trade organization, the National Mining Association, which filed its own lawsuit against CSAPR last September. “So we were not at all displeased to see the rule stayed.”
The court is expected to hear the case again in April, and could give a final ruling on the matter as soon as this summer, according to Walke. Even if the rule ends up being upheld, Walke estimated the rule would not go into effect until sometime in 2013 at the earliest.
For its part, the EPA issued the following statement on its web site in response to the court’s ruling:
The United States Court of Appeals for the D.C. Circuit issued its ruling to stay the CSAPR pending judicial review. The court's decision is not a decision on the merits of the rule and EPA firmly believes that when the court does weigh the merits of the rule it will ultimately be upheld.
It is disappointing that the significant public health benefits of the Cross State Air Pollution Rule may be delayed, even temporarily, especially given EPA's work to utilize the Clean Air Act's flexibility to ensure the rule is achievable. EPA will ensure the transition back to the Clean Air Interstate Rule (CAIR) occurs as seamlessly as possible.