Tuesday, August 21, 2012
In a 60-page opinion issued this morning, the court rebuked the EPA for exceeding its statutory authority when it issued the CSAPR regulations. The court explained that the EPA ignored and violated the federal Clean Air Act by imposing regulations not authorized by federal law. The court also roundly criticized the EPA for ignoring the cooperative federalism approach required by the Clean Air Act. Under this system, the federal government identifies pollutants and establishes the national air quality standards but states retain the authority and flexibility to enact their own unique state-based programs that ensure those standards are satisfied. In its opinion, the court also condemned the EPA for immediately seizing control of states’ permitting programs before states were properly given an opportunity to comply with the EPA’s new emissions limits.
As the CSAPR regulations were specifically applied to Texas, the EPA’s overreach was especially onerous. First, the EPA failed to provide Texas the advance notice that is required by federal law when it did not include the State in key aspects of the proposed rule that was published in August 2010 but then added Texas to the final regulations without notice. Further, Texas’ last-minute inclusion in the EPA’s CSAPR regulations was based upon a single air quality monitor in Granite City, Illinois which was fundamentally flawed not only because a nearby steel mill necessarily impacted that location’s air quality, but because that very location actually satisfied federal air quality standards.
Excerpts from the Court's opinion:
Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. 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.
Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here.
The Transport Rule includes or excludes an upwind State based on the amount of that upwind State’s significant contribution to a nonattainment area in a downwind State. That much is fine. But under the Rule, a State then may be required to reduce its emissions by an amount greater than the significant contribution’ that brought it into the program in the first place. That much is not fine.
There is a second, entirely independent problem with the Transport Rule. EPA did not stop at simply quantifying each upwind State’s good neighbor obligations. Instead, in an unprecedented application of the good neighbor provision, EPA also simultaneously issued Federal Implementation Plans, or FIPs, to implement those obligations on sources in the States. EPA did so without giving the States an initial opportunity to implement the obligations themselves through their State Implementation Plans, or SIPs.
EPA’s approach punishes the States for failing to meet a standard that EPA had not yet announced and the States did not yet know.
EPA faults the States for not hitting that impossible-to-know target with their SIP submissions. In effect, EPA’s view is that the only chance States have to hit the target is before EPA defines the target. By the time EPA makes the target clear, it’s already too late for the States to comply.