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Media Alerts - EME Homer City Generation v. EPA - D.C. Circuit
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July 31, 2015
  EME Homer City Generation v. EPA - D.C. Circuit
Headline: D.C. Circuit holds EPA must revise air pollution limits in 13 states

Area of Law:
Environmental

Issue(s) Presented: Whether the 2011 Cross-State Air Pollution rule, as applied, exceeds the authority of the Clean Air Act.

Brief Summary: In 2011, EPA promulgated the Cross-State Air Pollution rule, also known as the Transport Rule, the latest in a series of "good neighbor" regulations designed to help states meet national ambient air quality standards (NAAQS) under the Clean Air Act by restricting emissions of air pollutants in upwind states. The Transport Rule imposed uniform pollution reductions on all upwind states, regardless of the amount of pollution that individual states actually contributed to downwind states. A number of states, localities, and industry groups successfully challenged the Transport Rule in the U.S. Circuit Court of Appeals for the District of Columbia Circuit, arguing that the rule resulted in impermissible over-control of upwind states' emissions. The D.C. Circuit vacated the rule.

The U.S. Supreme Court reversed, holding in a 6-2 decision that the over-control problem did not invalidate the Transport Rule on its face and that overly restrictive emissions standards should be addressed through "particularized, as applied challenges." The Court determined that EPA may not require upwind states to reduce emissions by more than the amount necessary to achieve NAAQS attainment in every downwind state to which it contributes pollutants and that that amount is exceeded when downwind locations would achieve attainment even if less stringent upwind limits were imposed.

Applying the standards articulated by the Supreme Court, the D.C. Circuit determined that EPA was required to revise overly stringent emissions standards in thirteen states and remanded them without vacatur. It rejected EPA's preference for uniform pollution reductions, which the agency had argued were important because they subjected states that had done relatively little to control pollution in the past to stricter regulation and prevented them from "free riding" on other states' greater reduction efforts, concluding that the uniformity rationale "flatly contradicts" the Supreme Court's holding. The D.C. Circuit also rejected EPA's factual contention that lower-than-required pollution levels in downwind locations were not necessarily an indication of impermissible over-control in upwind locations. While acknowledging that lower levels were permissible under the Supreme Court's holding when they were "incidental" to limits that were necessary to achieve required levels elsewhere, the court concluded that the specific limits at issue were unnecessarily strict.

For the full text of the opinion, please see http://www.cadc.uscourts.gov/i...le/11-1302-1564814.pdf

Panel (if known): Rogers, Griffith, Kavanaugh

Argument Date: February 25, 2015

Date of Issued Opinion: July 28, 2015

Docket Number: 11-1302

Decided: Granted in part; denied in part

Case Alert Author: Ripple Weistling

Counsel (if known):

Author of Opinion: Kavanaugh

Case Alert Circuit Supervisor: Elizabeth Earle Beske, Ripple Weistling

    Posted By: Ripple Weistling @ 07/31/2015 01:25 PM     DC Circuit  

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