Environmental Law - Clean Air Act - D.C. Circuit Rejects EPA'S Attempt to Quantify and Implement Interstate Air Pollution Reductions

Harvard Law Review, April 2013 | Go to article overview

Environmental Law - Clean Air Act - D.C. Circuit Rejects EPA'S Attempt to Quantify and Implement Interstate Air Pollution Reductions


The Clean Air Act (1) (CAA) embodies "cooperative federalism," (2) an arrangement in which the federal government sets national air quality standards while the states enforce those standards. (3) But the allocation of state and federal responsibilities blurs in the context of interstate air pollution. The Environmental Protection Agency's 2011 Transport Rule (4) quantified upwind states' "significant contribution[s]" to downwind air quality problems and implemented a federal program to achieve the necessary emissions reductions. (5) Recently, in EME Homer City Generation, L.P. v. EPA, (6) the D.C. Circuit vacated and remanded the Transport Rule, holding that the Rule (1) improperly required upwind states to reduce emissions by more than the amount necessary to prevent their own significant contributions to nonattainment downwind and (2) improperly gave the federal government rather than the states the first opportunity to implement those reductions. (7) While the panel was correct in its first holding, the reasoning underlying its second holding was flawed. In looking past the plain text of the statute, the court overstated the absurdity of the EPA's interpretation of the CAA and applied the Act's "federalism bar" (8) too rigidly.

Under the CAA, the EPA sets National Ambient Air Quality Standards (NAAQS), which establish minimum allowable concentrations of certain air pollutants. (9) Each state then has "primary responsibility" (10) for achieving these NAAQS by promulgating State Implementation Plans (SIPs) designed to cut in-state emissions. (11) If a state fails to submit an adequate SIP by the statutory deadline, the EPA must promulgate a replacement Federal Implementation Plan (FIP). (12) Because certain pollutants cross into downwind states, (13) the CAA's "'good neighbor' provision" (14) requires that SIPs prevent in-state emissions that "contribute significantly to nonattainment in ... any other State." (15)

The EPA has had mixed success implementing the good neighbor provision. In Michigan v. EPA, (16) the D.C. Circuit upheld the Agency's use of cost considerations to reduce an upwind state's good neighbor obligations. (17) But eight years later, in North Carolina v. EPA, (18) the D.C. Circuit rejected the EPA's Clean Air Interstate Rule (19) (CAIR), holding that while cost considerations could reduce each state's good neighbor obligation, they could not increase a state's obligations beyond the state's individual contribution to downwind nonattainment. (20) Rather than vacate CAIR, the court ultimately left it in place as a backstop while the EPA devised a new rule. (21)

The EPA finalized CAIR's replacement, the Transport Rule, in 2011. The Rule first designated as significant contributors all those upwind states whose individual emissions contributed at least one percent of the NAAQS pollutant concentration in downwind nonattainment areas. (22) The EPA then quantified each significant contributor's "significant contribution" based on multi-state regional emissions modeling, taking the cost of reducing emissions into account. (23) Significant contribution quantities were based on the emissions a state could eliminate at a designated, cost-effective cost-perton threshold for its region. (24)

The states that the EPA had deemed to be significant contributors had already submitted SIPs to achieve the NAAQS for ozone and fine particle pollution, but those SIPs failed to address adequately the Transport Rule's newly quantified good neighbor requirements. (25) Accordingly, the EPA promulgated replacement FIPs in the Transport Rule. (26) The FIPs would go into effect immediately, but the states could submit replacement SIPs. (27) Various state and local governments and industry groups petitioned the D.C. Circuit for direct review of the Transport Rule, (28) and the court stayed the Rule pending a decision on the merits. (29)

A divided panel of the D.C. Circuit vacated and remanded the Transport Rule for exceeding the EPA's authority under the CAA. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Environmental Law - Clean Air Act - D.C. Circuit Rejects EPA'S Attempt to Quantify and Implement Interstate Air Pollution Reductions
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.