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EPA Seeks Rehearing of Cross-State Air Pollution Ruling

By Tom Schoenberg
October 05, 2012 12:41 PM EDT

The U.S. Environmental Protection Agency asked for a full-court review of a decision by a three- judge panel that threw out a rule designed to cut pollution from coal-fired power plants.

The agency, in a filing today in the U.S. Court of Appeals in Washington, said the judges in the 2-1 ruling striking down its cross-state air pollution rule developed “regulatory policy out of whole cloth” in violation of their role of review.

“The panel’s decision upends the appropriate relationship of the judicial, legislative, and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits, and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies,” Norman Rave, a Justice Department lawyer, said in the filing.

The panel’s decision dealt a blow to the Obama administration’s efforts to curb harmful emissions with a regulation it said would provide “dramatic” health benefits for 240 million people.

The eight active judges on the Washington-based appeals court heard only one so-called en banc case last term, according to the court’s docket.

Overstepped Authority

On Aug. 21, two of the judges on the panel, Brett Kavanaugh and Thomas Griffith, ruled that the agency overstepped its legal authority and imposed standards that were too strict. The court sided with power companies and mining groups that challenged the measure, which caps emissions in more than two dozen states.

The court ordered the agency to continue to enforce a 2005 measure known as the Clean Air Interstate Rule until a viable replacement to the cross-state regulation can be issued.

Among the power companies challenging the rule were Southern Co. (SO), EME Homer City Generation LP, a unit of Edison International (EIX), and Energy Future Holdings Corp. units in Texas. The state of Texas, the National Mining Association and the International Brotherhood of Electrical Workers joined in parallel cases, saying the rule would put an undue financial burden on power producers and threaten electricity reliability.

The EPA rules, which applied to Texas and 27 eastern states, would have imposed caps on sulfur dioxide, which can lead to acid rain and soot harmful to humans and ecosystems, and nitrogen oxide, a component of ground-level ozone and a main ingredient of smog.

The EPA argued in court papers that the rule would improve the health of more than 200 million people, saying it had “reasonably projected” which areas of the country should be covered by the regulation.

‘Costly, Burdensome’

Lawsuits challenging the rule called it “one of the most costly, burdensome and arbitrary” ever issued under the Clean Air Act.

Circuit Judge Judith Rogers, who dissented, said the majority’s opinion resulted in “the endorsement of a ‘maximum delay’ strategy for regulated entities, rewarding states and industry for cloaking their objections throughout years of administrative rulemaking procedures.”

The case is EME Homer City Generation LP v. U.S. Environmental Protection Agency, 11-1302, U.S. Court of Appeals for the District of Columbia (Washington).

To contact the reporter on this story: Tom Schoenberg in Washington at tschoenberg@bloomberg.net

To contact the editor responsible for this story: Michael Hytha at mhytha@bloomberg.net

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