By Jessica Coomes
The Environmental Protection Agency’s top air official said July 10 that,
even if a federal appeals court upholds the Cross-State Air Pollution Rule,
questions will remain about how to implement the program that never went into
effect on the planned start date.
Observers are expecting the U.S. Court of Appeals for the District of
Columbia Circuit to issue a ruling any day now on the legality of the
cross-state rule, which requires 28 states to reduce power plant emissions of
nitrogen oxides and sulfur dioxide that cross state lines (EME Homer City
Generation L.P. v. EPA, D.C. Cir., No. 11-1302, oral arguments
4/13/12; 72 DER A-14, 4/16/12).
“We feel pretty confident that rule will be upheld,” Gina McCarthy, EPA
assistant administrator for air and radiation, said at a conference of state
energy and environmental officials. “When that happens, we’ll be talking about
'What do we do now?' How do we get that restarted?”
Just days before the Jan. 1 compliance date, the D.C. Circuit stayed the
rule, and now that the year is half over, observers do not expect the rule to be
implemented in 2012. A second compliance period was set to begin in 2014, and
questions also remain about the feasibility of that deadline.
McCarthy said the agency “will be very sensitive to the fact we need to get
this up and running” if the rule is upheld, but EPA does not intend to implement
an unmanageable timeline.
McCarthy said the court could ask EPA for its opinion on how to proceed,
although she said EPA has not made a determination on when the first and second
phases should now start.
McCarthy also said she would hope the court specifically addresses the
implementation issues in its decision, so EPA does not need to proceed with
another rulemaking process. She was speaking at a joint conference of the
National Association of Clean Air Agencies, the National Association of State
Energy Officials, and the National Association of Regulatory Utility
While the cross-state rule is stayed, its precursor program, the Clean Air
Interstate Rule, remains in place to regulate interstate transport of pollution.
EPA published the final cross-state rule in August.
Kari Bennett, commissioner of the Indiana Utility Regulatory Commission, said
July 9 at the conference that the state would not have been able to reduce
emissions in just five months, between August 2011 and January 2012. Indiana is
one of the states challenging the rule in court.
Bennett said short compliance deadlines have the potential to force
retirements of coal-fired power plants.
Also speaking July 9, Collin O’Mara, the Delaware environment and energy
secretary, said his state and New England states have already required power
plants to install pollution controls, and they still cannot meet air quality
standards because of pollution from power plants in other states that crosses
The cross-state rule is intended to help downwind states meet national
ambient air quality standards for ozone and fine particulate matter. O’Mara
called the rule an “issue of fundamental fairness.”