EPA Loses Bid for Full-Court Review of Cross-State Rule

The U.S. Environmental Protection Agency lost a bid for review by a full federal appeals court of a three-judge panel’s ruling that threw out regulations designed to cut cross-state pollution from coal-fired power plants.

The U.S. Court of Appeals in Washington, in a two-sentence order today, said the majority of seven judges who considered requests by the EPA and other parties voted against reconsidering the earlier decision.

The panel’s 2-1 ruling on Aug. 21 dealt a blow to the Obama administration’s efforts to curb harmful emissions with a regulation it said would provide “dramatic” health benefits for 240 million people.

Two of the judges on the panel, Brett Kavanaugh and Thomas Griffith, said in that decision that the agency overstepped its legal authority and imposed standards that were too strict. The court sided with power companies and mining groups that challenged the measure, which caps emissions in more than two dozen states.

The court ordered the agency to continue to enforce a 2005 measure known as the Clean Air Interstate Rule until a viable replacement to the cross-state regulation can be issued.

The agency in seeking full court review said in an Oct. 5 filing that Kavanaugh and Griffith developed “regulatory policy out of whole cloth” in violation of their role of review.

The EPA, in an e-mailed statement, said it was disappointed by the court’s decision and was considering “any appropriate further course of action.” The agency could ask the U.S. Supreme Court to consider the case.

Sulfur Dioxide

The EPA rules, which applied to Texas and 27 other states, would have imposed 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.

Lawsuits challenging the rule called it “one of the most costly, burdensome and arbitrary” ever issued under the Clean Air Act.

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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