- Ag Docket
In 2009, the EPA began developing various rules that would negatively impact U.S. coal production. One of those rules, the Cross-State Air Pollution rule, imposed a cap-and-trade style program that expanded limitations on sulfur dioxide and nitrogen oxide emissions from coal-fired power plants in 28 "upwind" states. EPA claimed to have authority to cap emissions that supposedly traveled across state lines. However, in 2012, the D.C. Circuit Court of Appeals invalidated the rule on the basis that, while the Clean Air Act (CAA) grants the EPA authority to require upwind states to reduce their own significant contributions to a downwind state's non-attainment, the rule could impermissibly require upwind states to reduce emissions by more than their own significant contributions to a downwind state's non-attainment. The court also held that the EPA failed to allow states the initial chance (as required by statute) to implement any required reductions to in-state sources by quantifying a state's obligations and establishing federal implementation plans. Indeed, the EPA admitted that the rule would cost the private sector $2.7 billion and force numerous coal-fired power plants to shut down. However, on further review, the U.S. Supreme Court reversed in a 6-2 decision (Alito not participating). The Court held that the CAA did not require the states to be given a second opportunity to file a state implementation plan after the EPA has quantified a state's interstate pollution obligations. The Court also determined that the EPA had properly developed a "cost-effective" allocation of emission reductions among upwind states. The dissent pointed out that the statute precisely specified the responsibility of upwind states - to eliminate the amount of pollutants that it contributes to downwind problem areas rather than achieve reductions on the basis of how cost-effectively each state can decrease emissions. The dissent also pointed out that the Court's decision allows unelected bureaucrats to develop plans to implement air-quality standards before a state could have satisfied the benchmarks established in the plans on their own. Environmental Protection Agency, et al. v. EME Homer City Generation, L.P., et al., Nos. 12-1182 and 12-1183, 2014 U.S. LEXIS 3108 (U.S. Sup. Ct. Apr. 29, 2014).
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