Deeply Divided Court Blocks Vital Clean Air Protections for Texans
Dissent Argues Court’s Opinion is “Trampling” on Legal Precedent and Rewarding Polluters’ “Maximum Delay” Strategy

Austin, Texas –  Today, a deeply divided three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit vacated and remanded to the U.S. Environmental Protection Agency the Cross State Air Pollution Rule – a historic pollution reduction measure that would have protected air quality for 240 million Americans across the Eastern United States while saving up to 34,000 lives each year.   

“A deeply divided court remanded and vacated the Cross State Air Pollution Rule, clean air measures that would have prevented 1,704 unnecessary deaths in Texas each year, said Colin Meehan, Clean Energy Analyst at Environmental Defense Fund (EDF). “The Cross State Air Pollution rule would have included crucial health protections for Texans, particularly for children and the elderly.  The court’s decision means that cross-state pollution from Texas is regulated under the Clean Air Interstate Rule adopted in 2005 by EPA during the Bush administration.  Power plants in Texas must comply with both the first phase of the Clean Air Interstate Rule that took effect in 2010 and the second phase reductions that are required in 2015. ”

 The court’s opinion expressly leaves in place the existing Clean Air Interstate Rule pending EPA’s further rulemaking action to address this deleterious air pollution problem.    

 “The court's decision significantly imperils long overdue clean air safeguards for millions of Americans,” said Vickie Patton, General Counsel of EDF. “EDF will immediately seek corrective action to protect the lives of Americans harmed by power plant smokestack pollution.”

 Judge Kavanaugh wrote the opinion of the court joined by Judge Griffith.    

 Judge Rogers vigorously dissented, arguing Judge Kavanaugh’s opinion represented a “trampling on this court’s precedent on which the Environmental Protection Agency (‘EPA’) was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court.”  (from the Dissent Opinion at page 1)

 Judge Rogers further explained, “The result is the endorsement of a ‘maximum delay’ strategy for regulated entities, rewarding States and industry for cloaking their objections throughout years of administrative rulemaking procedures and blindsiding the agency with both a collateral attack on its interpretation of section 110(a) and an objection raised for the first time in this court.” (from the Dissent Opinion at page 43)  

 The Cross-State Air Pollution Rule would have reduced the sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone -- more commonly known as soot and smog -- drift across the borders of those states and contribute to dangerous, sometimes lethal, levels of pollution in downwind states.    

 The Cross-State Air Pollution Rule would have reduced power plant sulfur dioxide emissions by 73 percent and oxides of nitrogen by 54 percent from 2005 levels. 

 The Environmental Protection Agency issued the rule under the “Good Neighbor” protections of the Clean Air Act, which ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states. While no one is immune to these impacts, children and the elderly in downwind states are especially vulnerable. 

EPA estimated the Cross State Rule would have saved lives and provided vital clean air protections for millions of Americans across the Eastern United States as follows: 

• Saving up to 34,000 lives each year
• Preventing 15,000 heart attacks each year
• Preventing 400,000 asthma attacks each year
• Providing $120 billion to $280 billion in health benefits for the nation each year