Most Recent Action
This case involved a challenge to the U.S. Environmental Protection Agency’s Cross-State Air Pollution Rule (Transport Rule). The U.S. Court of Appeals for the District of Columbia Circuit vacated the rule in its entirety. The case was appealed to the U.S. Supreme Court, and in a 6-2 decision (authored by Justice Ginsburg, joined by Chief Justice Roberts and Justices Kennedy, Sotomayor and Kagan, Justices Scalia and Thomas dissenting) reversed the D.C. Circuit.
The State of Wisconsin joined the case along with other states and local governmental units opposing the EPA’s Transport Rule. Below is a discussion of the Supreme Court’s majority and dissenting opinions.
In EME Homer City Generation LP v. EPA, a federal court vacated the EPA’s Cross State Air Pollution Rule (CSAPR), which would have required 28 states, including Wisconsin, to significantly curtail sulfur dioxide and nitrogen oxide emissions. The EPA has petitioned the D.C. Circuit Court of Appeals for an en banc rehearing.
On May 12, 2005, the EPA issued the Clean Air Interstate Rule (CAIR), and on April 26, 2006, the EPA issued CAIR federal implementation plans (FIPs); these rules aimed to address the interstate transport of pollutants that contributed significantly to downwind nonattainment of the PM 2.5 and 8-hour ozone National Ambient Air Quality Standards (NAAQS) established in July 1997.
In July 2008, the D.C. Circuit Court vacated CAIR and the CAIR FIPs. In December 2008, the Court remanded these rules without vacating them, keeping them in place temporarily while the EPA promulgated new rules.
The Cross State Air Pollution Rule (CSAPR) was intended to replace CAIR. However, in EME Homer City Generation LP v. EPA, a federal court vacated the CSAPR and directed the EPA to continue administering CAIR while it promulgates a “valid replacement.”
This rule is part of a group of rules known as the EPA’s Regulatory Train Wreck.
The Clean Air Act’s (CAA) Section 110(a)(2)(D)(i)(I), also known as the “good neighbor” provision, requires states to prohibit emissions that contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to any primary or secondary NAAQS.
Standard Under CSAPR
The rule requires 27 states, including Wisconsin, to improve air quality by reducing power plant emissions that cross state lines and contribute to nonattainment or maintenance concerns for ozone (O3) or fine particulate NAAQS. This rule supports attainment and maintenance for the 1997 eight-hour ozone standard, the 1997 annual fine particulate standard (15 ug/m3) and the 2006 24-hour fine particulate standard (35 ug/m3).
Utilities are provided emission allocations and must hold allocations for each ton of SO2 or NOx emissions. The EPA has provided default allocations, but states can provide different allocations through a State Implementation Plan (SIP). The Cross-State Air Pollution Rule allows for trading of emissions between utilities within the state and limited out of state trading. Compared to 2010, this rule will reduce Wisconsin’s SO2 emissions by 63% (69,346 tons per year) and NOx emissions by 9% (2,891 tons per year).
The rule sets emissions caps, for sulfur dioxide (SO2) and nitrogen oxides (NOx). In Wisconsin, during 2012-2013, annual emissions may not exceed 79,480 tons for SO2, and 31,628 tons for NOx; ozone season NOx emissions may not exceed 13,704 tons. Beginning in 2014, Wisconsin’s emission caps will be 40,126 tons annually for SO2, 30,398 tons annually for NOx, and 13,216 tons for NOx during the ozone season.
The EPA is adopting FIPs for each state covered by this rule. The EPA is encouraging states to replace these FIPs with State Implementation Plans (SIPs) starting as early as 2013.
The rule is expected to cost $800 million annually to implement, in addition to the roughly $1.6 billion per year in capital investments already under way as a result of CAIR.
At the same time it release the final CSAPR rule, the EPA also issued a supplemental notice of proposed rulemaking that would require six states — Iowa, Kansas, Michigan, Missouri, Oklahoma, and Wisconsin — to make summertime NOX reductions under the Cross-State Air Pollution Rule ozone-season control program. The EPA finalized the supplemental rule on December 15, 2011.
The final rule expanding the Cross State Air Pollution Rule is distinct from a separate package of “technical amendments” to CSAPR, which would alter the originally proposed emission budgets for Wisconsin and other states.
EPA’s petition for an en banc rehearing, October 5, 2012.
EME Homer City Generation LP v. EPA, Vacating the CSAPR, August 21, 2012.
Direct Final Rule, February 7, 2012
Direct Final Rule Fact Sheet, February 2012
Final Revisions Rule, February 7, 2012
Final Revisions Rule Fact Sheet, February 2012
Federal Implementation Plan, December 15, 2011
Fact Sheet, December 15, 2011
Proposed technical modifications, October 6, 2011
Statement on proposed revisions, October 6, 2011
Fact sheet on proposed revisions, October 6, 2011
Final Rule, July 6, 2011
Supplemental Notice of Proposed Rulemaking, July 11, 2011
Final Rule Fact Sheet, July 18, 2011
Supplemental Notice Fact Sheet, July 2011
CSAPR Presentation created by the EPA, July 18, 2011
Press Release announcing the rule, July 7, 2011
Transport Rule & Utility MACT Increase Electricity Costs, National Economic Research Associates (NERA), May 2011
Public hearings were held on August 19, 26, and September 1, 2010.
Press Release announcing the proposed rule, July 6, 2010