Monthly Archives: August 2012

ASME and the decision against the CSAPR

A great synopsis of the ruling that vacated the Cross State Air Polution Rule was given in today’s ASME Capitol Update newsletter – provided here in it’s entirety (other than the author’s email address, which I can provide to you on request):

On August 21st, the U.S. Court of Appeals for the District of Columbia ruled in a 2-1 decision that the Environment Protection Agency (EPA) exceeded its authority in crafting the Cross State Air Pollution Rule (CSAPR). EPA had argued that CSAPR would lead to reductions of nitrogen oxide and sulfur dioxide emissions by more than 50 percent from 2005 levels by 2014. The rule’s challengers argued that the rule would place an undue strain on the country’s electric grid.

In its ruling, the Court found that “although the facts here are complicated, the legal principles that govern this case are straightforward: Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority.”
“Here, EPA’s Transport Rule exceeds the agency’s statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State’s nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits, as a policy matter, the EPA’s Transport Rule violates the statute.”

“Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States’ good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.”

“For each of those two independent reasons, EPA’s Transport Rule violates federal law. Therefore, the Rule must be vacated.”
The rule was remanded to EPA to be rewritten.

The 104-page decision may be read at:

Paul Fakes covers public policy-related energy issues for ASME. He can be reached at
It’s back to the drawing board for the EPA…

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