Court Delays CSAPR

On December 30th, a federal appeals court ruled that the Environmental Protection Agency must delay implementation of the Cross State Air Pollution Rule pending the outcome of legal challenges to the case.

A broad-based, bipartisan coalition of groups including power companies, cities, states, industry groups and labor organizations has emerged to challenge the rule in court because of what they have deemed to be an unrealistic compliance deadline that could affect electric reliability and create significant economic impacts to consumers. Wisconsin is one of the states challenging the rule, along with Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Mississippi, Nebraska, Ohio, Oklahoma, South Carolina, Texas, and Virginia.

On December 1, the EPA filed a motion arguing that the claims that CSAPR will require large emissions reductions starting on January 1, 2012 have been “grossly exaggerated” and that the state emissions budgets set by the EPA for 2012 and 2013 under CSAPR are based on emissions controls that either already exist or have been planned. The EPA further defended its rule by arguing that it was justified in issuing Federal Implementation Plans (FIPs) rather than requesting State Implementation Plans (SIPs), and also argued that, while there will be compliance costs to industry as a result of the rule, these costs do not amount to “irreparable harm.”

A three-judge panel of the U.S. Appeals Court in Washington sided with the challengers, agreeing to delay the implementation of the rule. It is unclear how the court will ultimately rule in the case, EME Homer City Generation LP v. U.S. Environmental Protection Agency, 11-1302. The legal standard for a stay suggests that the challengers are “likely to succeed on the merits” in the over all case. However, the legal questions in the case are very technical and wide-ranging, so a stay might mean that the court just wants more time to analyze the rule without changing the regulatory status quo. The court has not yet scheduled a date for argument, but the projected date is sometime in April.

Additional information on the Cross State Air Pollution Rule is available on the Great Lakes Legal Foundation Regulatory Watch CSAPR webpage.

This post was authored by GLLF staff attorney Emily Kelchen.