Federal appeals court strikes down EPA’s Cross-State Air Pollution Rule

posted at 2:41 pm on August 21, 2012 by Ed Morrissey

The Obama administration suffered a stinging legal loss at the federal appellate level today.  The DC circuit vacated a novel EPA rule that would have forced power plants in 28 states to cut electricity production, ruling 2-1 that the EPA had exceeded its statutory authority under the Clean Air Act:

A federal court has struck down an Environmental Protection Agency rule that forces cuts in soot- and smog-forming power plant emissions that cross state lines, dealing a major blow to the White House’s air quality agenda.

The U.S. Court of Appeals for the District of Columbia Circuit vacated the Cross-State Air Pollution Rule that forces cuts from plants in 28 states in the eastern half of the country, finding that it exceeds EPA’s powers under the Clean Air Act. …

The judges said the Obama administration rule allows EPA to “impose massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text.”

Several states, including Texas, Alabama and Georgia, challenged the rule alongside the National Mining Association, power companies and other parties. But other states such as New York and Delaware, as well as environmental groups, joined the case in defense of EPA.

The EPA imposed the rule last year, announcing that the benefits of the new rule would outweigh its costs. The justices didn’t base the decision on the relative merits of the argument, though, but on the basis of statutory authority.  The correct venue for making that determination would be Congress, which would then need to grant the EPA the jurisdiction for that kind of rule making and/or enforcement.  Congress had not granted the EPA that kind of authority, so the cost-benefit analyses were moot.

So what comes next?  The court ordered the EPA to return to the Clean Air Interstate Rule until Congress decides otherwise:

A three-judge panel of the U.S. Court of Appeals in Washington today sided with more than three dozen challengers to the EPA’s Cross-State Air Pollution Rule, which imposes caps on emissions for 27 states. The rule was put on hold by the court while it considered the legality of the regulation.

The court ordered the agency to enforce a 2005 rule known as the Clear Air Interstate Rule, until a viable replacement to the cross-state pollution rule is made.

NPR calls this “another notch in [the] belt” for Texas AG Greg Abbott, who won another fight against the EPA last week, too:

Just a week after a court victory against the Environmental Protection Agency(EPA), Texas Attorney General Greg Abbott has another notch in his belt. Today, an appeals court in Washington has ruled that the EPA violated the Clean Air Actwith its Cross State Air Pollution Rule (CSAPR), and now must revise the ruling.

It’s welcome news for Abbott, who just last week bragged that he likes to “sue the Obama administration” for fun. The state of Texas was joined by dozens of others, including some Texas power companies, in challenging the rule. …

Why did the court vacate the EPA’s rule?

It said that agency had “exceeded its statutory authority” in enacting the rule. “Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable,” the ruling, which you can read below, states:

“Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders.”

Consider this a victory for Governor Rick Perry as well.  He has made it a personal mission to fight federal interference in state matters, and he’s racking up impressive victories in that battle with Washington.


Related Posts:

Breaking on Hot Air

Blowback

Note from Hot Air management: This section is for comments from Hot Air's community of registered readers. Please don't assume that Hot Air management agrees with or otherwise endorses any particular comment just because we let it stand. A reminder: Anyone who fails to comply with our terms of use may lose their posting privilege.

Trackbacks/Pings

Trackback URL

Comments

Look, soot and smog shouldn’t have to be told to not cross state lines. Both should know the power of the State, pursuant to the Commerce Clause.

Roberts will reverse, and will force both soot and smog to comply.

OhEssYouCowboys on August 21, 2012 at 2:45 PM

Thank you Abbott for our state and others talking on the epa and winning!

I am so proud of TX and all who fight for us.
L

letget on August 21, 2012 at 2:47 PM

Thanks for some good news, Ed. Needed it.

ConservativeLA on August 21, 2012 at 2:49 PM

Look, soot and smog shouldn’t have to be told to not cross state lines. Both should know the power of the State, pursuant to the Commerce Clause.

Roberts will reverse, and will force both soot and smog to comply.

OhEssYouCowboys

Last I heard Roberts was working on the repeal of gravity.

Hard Right on August 21, 2012 at 2:50 PM

Good, I hate the EPA, the Environmentalist Promotion Agency

Charlemagne on August 21, 2012 at 2:50 PM

You’re next, IRS….

apostic on August 21, 2012 at 2:51 PM

Wow, I’m really liking these recent rulings against the EPA !!
Hadn’t held up much hope, the way the judicial benches are.
Cool.

pambi on August 21, 2012 at 2:52 PM

until a viable replacement to the cross-state pollution rule is made.

Really ?
How exactly do the deniuses in EPA plan to contain cross-state air pollution ?

burrata on August 21, 2012 at 2:53 PM

Striking down the EPA “rules” isn’t enough.

They must be decimated – like back in Roman times.

forest on August 21, 2012 at 2:53 PM

If it hasn’t, already, the EPA should control the migration of shrimp and tuna, and other such belligerent, mercury and other heavy metal carrying denizens of the deep.

I’m getting sick of their callous disregard of Federal standards, and our safety. Something should be done. And the Commerce Clause and Roberts are just the tools to do it.

OhEssYouCowboys on August 21, 2012 at 2:54 PM

until a viable replacement to the cross-state pollution rule is made.

Really ?
How exactly do the geniuses in EPA plan to contain cross-state air pollution ?

burrata on August 21, 2012 at 2:54 PM

Last I heard Roberts was working on the repeal of gravity.

Hard Right on August 21, 2012 at 2:50 PM

It’s that damned gravity that’s keeping the economy down.

Away with it!

OhEssYouCowboys on August 21, 2012 at 2:55 PM

Consider this a victory for Governor Rick Perry as well. He has made it a personal mission to fight federal interference in state matters, and he’s racking up impressive victories in that battle with Washington.

Would that be Cruz doing the winning?

tomg51 on August 21, 2012 at 2:56 PM

Awesome, need some good news since this Akin clown is pi$$ing me off so much.

gsherin on August 21, 2012 at 2:57 PM

When Romney makes me the Budget Cuts Czar, EPA will be the first to fall under the point of my red pen.

Finbar on August 21, 2012 at 2:57 PM

Last I heard Roberts was working on the repeal of gravity.

Hard Right on August 21, 2012 at 2:50 PM

It’s that damned gravity that’s keeping the economy down.

Away with it!

OhEssYouCowboys on August 21, 2012 at 2:55 PM

Dang.. Now Chu needs to come up with alternative forms of gravity….

tomg51 on August 21, 2012 at 2:58 PM

Thank you Abbott for our state and others talking on the epa and winning!
I am so proud of TX and all who fight for us.
letget on August 21, 2012 at 2:47 PM

Mega dittos !
Proud to be a Texan !!
:-)

pambi on August 21, 2012 at 2:58 PM

“It said that agency had “exceeded its statutory authority” in enacting the rule.”

Obowma to override courts ruling with an Executive Order in 5… 4… 3… 2…

… and the “Press” will still be talking about Akin.

Seven Percent Solution on August 21, 2012 at 3:00 PM

Dang.. Now Chu needs to come up with alternative forms of gravity….

tomg51 on August 21, 2012 at 2:58 PM

I bet you thought that Solyndra was out of the picture.

;O)

OhEssYouCowboys on August 21, 2012 at 3:00 PM

That’s nice. How long will this be in effect? Through the cold months of winter? Because John Roberts is waiting with baited breath to side with the EPA. The court can’t be challenging a left-wing bureaucracy.

Portia46 on August 21, 2012 at 3:01 PM

Good, I hate the EPA, the Environmentalist Promotion Agency

Charlemagne on August 21, 2012 at 2:50 PM

.

You’re next, IRS….

apostic on August 21, 2012 at 2:51 PM

.

Striking down the EPA “rules” isn’t enough.

They must be decimated – like back in Roman times.

forest on August 21, 2012 at 2:53 PM

.
Abolish BOTH of them. Period.

listens2glenn on August 21, 2012 at 3:01 PM

Great news. Obama can continue to charge up his Blackberry without fear of the power going out.

COgirl on August 21, 2012 at 3:03 PM

How exactly do the geniuses in EPA plan to contain cross-state air pollution ?

burrata on August 21, 2012 at 2:54 PM

two words: Twelfth Century

JusDreamin on August 21, 2012 at 3:03 PM

It said that agency had “exceeded its statutory authority” in enacting the rule.

Seems to be a recurring theme with this administration.

GarandFan on August 21, 2012 at 3:04 PM

Good, I hate the EPA, the Environmentalist Promotion Agency

Charlemagne on August 21, 2012 at 2:50 PM

Employment Prevention Agency.

22044 on August 21, 2012 at 3:04 PM

Employment Prevention Agency.

22044 on August 21, 2012 at 3:04 PM

Thread winner….

SWalker on August 21, 2012 at 3:06 PM

Somewhere in Mexico they burn the crop fields every year and Texas gets all of the smoke for a few days.Now that’s real cross border air pollution with nary a peep from the EPA.

docflash on August 21, 2012 at 3:06 PM

Thank you Abbott for our state and others talking on the epa and winning!
I am so proud of TX and all who fight for us.
letget on August 21, 2012 at 2:47 PM

Well, do you think you could send the Rangers North to hogtie that prune-faced little pompous fool with the bad toupe who thinks his big mouth and ignorance are God’s fault and so he has to remain in the race to pass God’s test? Have them explain that he’s in fact the devil’s tool.

I do believe in the Texas Rangers.

Portia46 on August 21, 2012 at 3:08 PM

The EPA thought they could use an ends-justified-the-means argument to force states to accept pollution reductions greater than their own violations as long as their study said is was cost effective. Should have read the statute.

The finding noted two significant violations of the statute:
First, they used the Transport rule to force upwind states to reduce pollution greater than their individual violations

…under the Transport Rule, upwind
States may be required to reduce emissions by more than their
own significant contributions to a downwind State’s
nonattainment. EPA has used the good neighbor provision to
impose massive emissions reduction requirements on upwind
States without regard to the limits imposed by the statutory
text.

Second, the Feds imposed implementation plans on the states instead of leaving the implementation to the states per statute:

…when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.

STL_Vet on August 21, 2012 at 3:08 PM

Dang.. Now Chu needs to come up with alternative forms of gravity….

tomg51 on August 21, 2012 at 2:58 PM

All Chu needs is a bundler ready to put $ 500,000 in Obama’s pockets, upfront,
and Chu will grant the bundler around half a billion taxpayer dollars for Gravityndra.

burrata on August 21, 2012 at 3:10 PM

Thank you

darwin on August 21, 2012 at 3:16 PM

It looks like August will be a memorable month for Republicans and a horror story for Democrats.

timberline on August 21, 2012 at 3:16 PM

Roberts will just declare the entire EPA a tax and allow them to do whatever they want.

Rambotito on August 21, 2012 at 3:19 PM

Congress set up a federalism-based system

Thank God someone actually reads the Constitution and applies the laws as written.

jnelchef on August 21, 2012 at 3:19 PM

EPA needs to be judicially and statutorily reigned in, if not abolished altogether.

petefrt on August 21, 2012 at 3:20 PM

This rule has nothing to do with clean air, there are already many rules covering that; but the rule would make every State in the Union impose the environmental rules of the most stringent and rediculous environmentally insane State…say CA, for example.

aposematic on August 21, 2012 at 3:21 PM

It looks like August will be a memorable month for Republicans and a horror story for Democrats.

timberline on August 21, 2012 at 3:16 PM

The history will later show that the horror story began on Friday the 13th of July, which will now forever be known as “You Didn’t Build That Day”.

But what will happen in September? Or, more importantly, October?

Del Dolemonte on August 21, 2012 at 3:22 PM

It’s welcome news for Abbott, who just last week bragged that he likes to “sue the Obama administration” for fun.

And Obama likes to sue the state of Arizona for fun.

Good job AG Abbott (and Gov. Perry). Keep up the good work, and keep having lots and lots of fun!

AZCoyote on August 21, 2012 at 3:24 PM

I love it! Thank you, Texas!!!

Cindy Munford on August 21, 2012 at 3:25 PM

until a viable replacement to the cross-state pollution rule is made.

Really ?
How exactly do the geniuses in EPA plan to contain cross-state air pollution ?

burrata on August 21, 2012 at 2:54 PM

The ruling means that the EPA has to rely on the prior CAIR act in order to enforce policy. CAIR is also somewhat defunct but they will have to rely on it until the EPA forms a new rule.

The bit of the rule that ran afoul of the Court was the provision that allows the EPA to require state cuts in emissions beyond those that bring their neighbor into compliance with the Clean Air Act. There were some other minor rulings about reporting and compliance but that seems to be the meat of the ruling.

lexhamfox on August 21, 2012 at 3:27 PM

The Obama administration suffered a stinging legal loss at the federal appellate level today.

That might mean something if the Obama Administration hasn’t repeatedly demonstrated that it doesn’t give a crap about what a federal court might think if they don’t like the courts verdict and will do whatever it damn well pleases regardless.

Midas on August 21, 2012 at 3:30 PM

The face of the EPA.

“Yes, your honor, it’s true. This man has no d!ck.”

UltimateBob on August 21, 2012 at 3:34 PM

Striking down the EPA “rules” isn’t enough.

They must be decimated – like back in Roman times.

forest on August 21, 2012 at 2:53 PM

Decimation is a good start. Our ultimate objective, though, should be annihilation and destruction in detail.

trigon on August 21, 2012 at 3:36 PM

Good news.

Next up: MACT Blackout Rule!

novaculus on August 21, 2012 at 3:37 PM

Somewhere in Mexico they burn the crop fields every year and Texas gets all of the smoke for a few days.Now that’s real cross border air pollution with nary a peep from the EPA.

docflash on August 21, 2012 at 3:06 PM

We have to ignore that because it’s undocumented smoke.

slickwillie2001 on August 21, 2012 at 3:41 PM

How about we make it illegal for tornados to cross state lines? That should reduce the damage they cause.
I mean, really, if a tornado forms in Kansas, it really shouldn’t have any right to conduct it’s business in Missouri also…..
I’m sure the EPA geniuses can see the logic in that…/

dentarthurdent on August 21, 2012 at 3:42 PM

Don’t Worry Everybody!

John Roberts will rewrite the regulation from the bench citing John Conyer’s Good and Plenty clause as authority for his new powers.

Afterseven on August 21, 2012 at 3:43 PM

As long as we’re trying to stop smoke and soot at state lines, maybe we could stop the clouds from taking our rain over state lines as well. It would help if we could keep more of it here in Colorado – especially since you eastern states seem to be flooding – so I’m sure you’ll agree…

dentarthurdent on August 21, 2012 at 3:45 PM

…of course Holder won’t let that stand…he’ll have to make sure the SC… Robert rules again!

KOOLAID2 on August 21, 2012 at 3:50 PM

Really ?
How exactly do the deniuses in EPA plan to contain cross-state air pollution ?

burrata on August 21, 2012 at 2:53 PM

Put a bubble around every state of course. This had the added bonus of regulating who gets to travel between states so we can be one step closer to being like glorious Soviet Russia.

Cyhort on August 21, 2012 at 3:53 PM

That’s the whole point, the EPA knows emissions can’t be contained and will cross state lines just like illegals cross the border. Why do we even have this group of dimwits when every state has their own version.

Kissmygrits on August 21, 2012 at 4:01 PM

Wonderful news for anyone east of the Mississippi who doesn’t breathe.

plewis on August 21, 2012 at 4:03 PM

Wonderful news for anyone east of the Mississippi who doesn’t breathe.

plewis on August 21, 2012 at 4:03 PM

You really are a true believer™ that thinks the gov is here to save you.

tom daschle concerned on August 21, 2012 at 4:06 PM

Consider this a victory for Governor Rick Perry as well. He has made it a personal mission to fight federal interference in state matters, and he’s racking up impressive victories in that battle with Washington.

Would that be Cruz doing the winning?

tomg51 on August 21, 2012 at 2:56 PM

This is a victory for both Atty. Gen. Abbott & Gov. Perry who have been fighting for Texas in the courts.

workingclass artist on August 21, 2012 at 4:10 PM

You know, smog, smoke, and soot are more often than not dark in color.

I’m sick and tired of this Obama EPA trying to limit smog, smoke, and soot’s rights of interstate travel.

What kind of Jim Crow travesty is this?!

Hey, EPA, it’s the 21st century for the rest of us. Senator Byrd is gone. Feel free to discard those antiquated Democrat Party race crimes.

P.S.: You stink!

Dion on August 21, 2012 at 4:12 PM

On a related note, the state of Kalifornia has determined that breathing air causes cancer.

dentarthurdent on August 21, 2012 at 4:12 PM

“It said that agency had “exceeded its statutory authority”

Great. Now can they say the same about Obama?

IrishEyes on August 21, 2012 at 4:16 PM

Guess the Democrats have scratch off from their convention speeches & re-do the videos about another “accomplishment” by Obama…

One could see them bragging about his getting the Cross-State Air Pollution Rule in place…

Over ruled. Tossed-out. In the garbage can.

albill on August 21, 2012 at 4:28 PM

The Obama administration suffered a stinging legal loss at the federal appellate level today.

This is a sentence I would enjoy reading every day.

INC on August 21, 2012 at 4:29 PM

This is a victory for EVERYONE’S wallet

TX-96 on August 21, 2012 at 4:41 PM

Suck on that EPA.

CorporatePiggy on August 21, 2012 at 4:44 PM

This would be the big news of the day, were it not for that idiot Akin.

Adjoran on August 21, 2012 at 4:46 PM

Bravo! Now let’s get rid of the EPA–the extortionate pissant agency.

Texas AG Greg Abbott is the anti-Eric-Holder, stickin’ it right back at the Obominable admin.

stukinIL4now on August 21, 2012 at 4:50 PM

Can I get a yee haw, Go Texas!!!!

la.rt.wngr on August 21, 2012 at 5:01 PM

This alone will boost the stock market and then Obama and the media will be crowing about how this is related to the greatness of Obama’s economic plans…

Spartacus on August 21, 2012 at 5:11 PM

Eliminating
Productive
Activities

iurockhead on August 21, 2012 at 6:08 PM

Trying to eliminate dark particulate matter is so Racist!

Another Drew on August 21, 2012 at 6:35 PM

I was disappointed when our governor’s bid for the presidency failed, but the upside is that we still have him and Abbott and others to defend us from the feds. This will be even more important if SCOAMF somehow wins a lame duck term.

juliesa on August 21, 2012 at 7:09 PM

no worries roberts will save Obama’s as@ again.

unseen on August 21, 2012 at 7:20 PM

In the immortal words of Nelson Muntz, whilst pointing laughingly at our Kenyan Communist Muslim-In-Chief, his Teleprompter, his Cabinet, his EPA and all the Enviro Fascist groups who helped “elect” him in 2008 – HA-HA !!

CatchAll on August 21, 2012 at 8:38 PM

dont worry, I am sure O will deem it and it will be done… who needs the courts when they dont favor your utopia.

watertown on August 21, 2012 at 9:56 PM

Striking down the EPA “rules” isn’t enough.

They must be decimated – like back in Roman times.

forest on August 21, 2012 at 2:53 PM

One in ten is not near enough even if we make the other nine beat them to death with their own copy of Marx regulations.

I have heard that the punishment for mutiny was to leave 1 in 10 alive to worn the others of the consequences, with the internet we don’t need that many.

Slowburn on August 22, 2012 at 5:41 AM

Striking down the EPA “rules” isn’t enough.

They must be decimated – like back in Roman times.

forest on August 21, 2012 at 2:53 PM

Still not enough. The Roman solution for Carthage was razing it to the ground and sowing every acre with salt. Even that is not enough to kill the EPA dead, but it’s a start.

J.E. Dyer on August 22, 2012 at 1:45 PM