D.C. Circuit Vacates EPA’s Cross State Air Pollution Rule

On August 21, 2012, the United States Court of Appeals for the District of Columbia issued its Opinion and Order in the appeal of the Cross State Air Pollution Rule (CSAPR). The Court vacated CSAPR for two independent legal reasons and has remanded the rule back to the Environmental Protection Agency (EPA) for further consideration.

This decision reflects the third attempt by EPA to include the state of Wisconsin in an interstate pollution transport rule. In each instance, the United States Court of Appeals for the District of Columbia has held that EPA’s attempts were illegal.

It is too early to predict EPA’s response to the CSAPR vacature. However, it is almost certain that any regulatory response will take years to develop and therefore is not likely to impose new requirements on Wisconsin sources in the short term. The court’s decision seems to seriously undermine EPA’s approach for addressing interstate transport which may require EPA to a make a significant policy shift in its regulatory approach to addressing this issue. The court also reaffirmed the primary role of states in establishing Clean Air Act policy within their respective jurisdictions and any EPA response must provide states with an opportunity to exercise that authority. In the interim, the previously vacated Clean Air Interstate Rule (CAIR) remains in effect, for now, by a standing Court order.

Read more by Todd E. Palmer at:
http://www.michaelbest.com/dc-circuit-vacates-epas-cross-state-air-pollution-rule/