A federal appeals court is indefinitely delaying oral arguments in a lawsuit challenging an EPA regulation of upwind sources of ozone-forming pollution while the agency decides how to proceed in a related case.
The U.S. Court of Appeals for the District of Columbia Circuit on Sept. 18 granted the Environmental Protection Agency’s request to give it until Oct. 29 to decide whether it will voluntarily rewrite the 2018 update of a rule on cross-state air pollution from power plants.
In Wisconsin, the court ruled Sept. 13 that the agency must ensure that upwind states reduce significant amounts of power plant pollution so their downwind neighbors can meet federal ozone limits.
The case undercut the EPA’s rationale of failing to fully address ozone-forming pollution from upwind states. The agency hasn’t decided whether to seek a rehearing. It has until Oct. 28 to make a decision on that front.
Power plants are the largest sources of nitrogen oxides, a precursor to ozone, which causes respiratory problems, especially in children, older people, and people with asthma.
The EPA was scheduled to appear on Sept. 20 before the D.C. Circuit to defend its reliance on a 2018 regulation known as the Close-Out Rule to address upwind sources of pollution.
The judges in that case had asked the EPA to be prepared to answer questions during oral arguments about its plans to address the impact of the Wisconsin ruling and other plans to address upwind sources of power plant pollution.
Because the court’s panel of judges in Wisconsin disagreed with the EPA’s interpretation of the Clean Air Act’s requirements to address nitrogen oxide releases from power plants in upwind states, the agency said it needed more time to address the questions raised by the court—specifically the impact of the Wisconsin ruling—and decide its course of action.
If the court permits the EPA to rewrite the rule, the agency said, oral arguments on the Close-Out Rule may be unnecessary.
Coalitions of New York-led states and environmental groups in a joint filing urged the court to vacate the 2018 regulation because of the Wisconsin ruling, and to order the agency to draw up a deadline for upwind states to reduce their pollution.
They said the court in Wisconsin made it clear that EPA needs to align upwind states’ responsibilities with the obligations of the downwind states to meet federal ozone limits.
They said the 2018 regulation “indisputably allows upwind States to continue their significant contributions” to downwind states that are in danger of violating the July 20, 2021, deadline of meeting federal ozone limits.
EPA’s decision to ask for more time to decide on a course of action didn’t surprise Janet McCabe, who was acting head of the Obama EPA air office in 2016 when the rule in the Wisconsin decision was written.
“The Close-Out Rule used the same reasoning that the EPA used in the 2016 update rule,” said McCabe, currently the director of Indiana University’s Environmental Resilience Institute. “Since the D.C. Circuit has rejected that reasoning in a significant way, the EPA needs to figure out what that means and what happens next.”
According to the court opinion, EPA didn’t fully require upwind reductions. Assuming the court’s decision isn’t revised, EPA will need to look at upwind contributions of nitrogen oxides to satisfy its Clean Air Act’s Good Neighbor obligations.
“This is a complicated undertaking because it may mean EPA has to go beyond looking at power plants and consider other sources too. They may have to seek additional controls at power plants and review its inventory of power plants since many have closed down since 2016,” McCabe said.
The case is New York v. EPA, D.C. Cir., No. 19-1019, 9/17/19.
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