With No Power Comes No Responsibility: The EPA Oversteps Again

On August 21, 2012, the D.C. Circuit Court of Appeals struck down the EPA’s Cross-State Air Pollution Rule (CSAPR).  CSAPR is an attempt to implement the “good neighbor” provision of the Clean Air Act that requires “upwind States” to prevent “sources within their borders from emitting … ‘amounts’ of pollution that travel across state lines” causing “downwind States” to fail to meet air quality requirements.

The intent is to protect downwind states from pollution created in upwind states that travels across state lines.  As the court noted, “To put it colloquially, the good neighbor provision requires upwind states to bear responsibility for their fair share of the mess in downwind states.”

This regulatory goal is noble, but as the court found, CSAPR goes too far.  Under EPA’s regulation, “upwind States may be required to reduce emissions by more than their own significant contributions…without regard to the limits imposed by the statutory text.”  The Clean Air Act, which gives EPA the authority to enact CSAPR, does not allow the agency to require an upwind State to limit its emissions by more than its contributions to the downwind state.

CSAPR requires upwind states to bear responsibility for more than their share of emissions in downwind states, and thus, is beyond EPA’s authority to regulate.  The court has considered a similar issue before, determining that while the EPA can decrease a state’s responsibilities under the good neighbor provision, as in cases where the cost would be prohibitive, it cannot increase a state’s responsibilities beyond what they have actually contributed.

In addition, under the Clean Air Act, the states get a preliminary opportunity to comply with the EPA’s requirements.  Once EPA sets the standards for air quality, the states are supposed to get three years to implement their own plans in order to comply, choosing which sources must reduce emission and by how much.

EPA’s view was radically different.  In CSAPR, the agency has cut the states’ discretion and right to control from the equation, and provided a federal plan instead of the required state plan.  In this way, the EPA once again exceeded its authority.

The court notes that, while they are ruling on the merits of the case, they are not judging the merits of having higher clean air standards.  The court is not denying EPA’s motives, but is ruling that its actions have exceeded Clean Air Act guidelines. This marks the sixth time that the EPA has overstepped its authority during the Obama Administration and had a regulation repealed by the courts.  Had the court not ruled against this overextension of power, CSAPR could have cost an estimated $2.7 billion to implement, much of this cost affecting coal burning power plants.

The EPA’s record in enforcing the good neighbor provision has been mixed so far, and the courts have found it overstepping its bounds.  Whether the EPA can implement the good neighbor provision in a manner consistent with the law is a question for EPA Administrator Lisa Jackson, and her boss, President Obama.