EPA Defends Cross-State Air Pollution Rule to U.S. Court

U.S. regulation of interstate air pollution will have “dramatic” health benefits for 240 million people and should be implemented, the Environmental Protection Agency told a federal appeals court.

The agency today urged the U.S. Appeals Court in Washington to uphold the Cross-State Air Pollution Rule, which was put on hold by the court in December while it considered the legality of the regulation. The EPA said in its filing that it “reasonably projected” what areas of the country should be included in the rule.

“The transport rule represents the culmination of decades of congressional, administrative and judicial efforts to fashion a workable, comprehensive regulatory approach to interstate air pollution issues that have huge public health implications,” according to the 116-page filing.

The EPA rule, which apply to Texas and 26 eastern states, impose caps on sulfur dioxide, which can lead to acid rain and soot harmful to humans and ecosystems, and nitrogen oxide, a component of ground-level ozone and a main ingredient of smog.

More than three dozen lawsuits were filed challenging the rule as “one of the most costly, burdensome and arbitrary” ever issued under the Clean Air Act, according to court filings.

April Arguments

Arguments in the case are scheduled for April 13 before judges Judith Rogers, Thomas Griffith and Brett Kavanaugh.

Southern Co. (SO), EME Homer City Generation LP, a unit of Edison International (EIX), and Energy Future Holdings Corp (TXU). units in Texas are among the power companies challenging the rule. The state of Texas, the National Mining Association and the International Brotherhood of Electrical Workers joined in parallel cases, saying the rule puts an undue financial burden on power producers and threatens electricity reliability by forcing companies to shut some older plants.

The rule, issued in July and revised in October, applies to emissions that cross state lines.

“EPA refused to consider real-world air quality data contradicting its own implausible air quality projections that were the basis for subjecting upwind states to” the regulation, Peter Keisler, a partner at Sidley Austin LLP who represents opponents, said in court papers filed Feb. 9.

He said the agency also set “unprecedented, truncated” compliance deadlines that “assumed that industry should have begun installation of costly controls even before the final rule had issued.”

The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, 11-1302, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net;

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net.

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