Court tells EPA to redo overly strict emission limits in 13 states

mccarthyismA U.S. Court of Appeals for the District of Columbia Circuit has ordered the Environmental Protection Agency (EPA) to relax the air-pollution limits placed on power-plants emissions. The EPA instituted these rules as some gases cross state lines and impact “downwind” states. The court’s ruling, which was handed down on Tuesday, still upholds the EPA’s right to impose clean-air standards under the Cross-State Air Pollution Rule, rejecting the states and industry groups’ argument that the rule was “overly burdensome.” This ruling will force the EPA to redo its rules for 13 states that emit sulfur dioxide and nitrogen oxide, gases that get carried on winds and cross state lines, eventually reaching the East Coast.

According to the Associated Press (AP), the appeals court ruling said the “EPA’s rule imposed overly strict limits on the 13 upwind states,” which would “result in downwind states ‘overachieving’ air quality standards for harmful pollutants, the court wrote.”

“Texas and South Carolina would see limits for both forms of pollution adjusted,” the AP writes, “While new limits for either sulfur dioxide or nitrogen oxides would be set in 11 other states: Alabama, Florida, Georgia, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, Virginia and West Virginia.”

This latest decision reflects the June 29th Supreme Court ruling that rebuked the EPA for failing to consider the costs of certain rules when imposing new regulations. Justice Antonin Scalia wrote for the majority opinion, saying “no regulation is ‘appropriate’ if it does significantly more harm than good.”

The affected states and industry groups have argued the air-pollution limits were a violation of states’ rights and part of Obama’s longstanding campaign promise to shutter coal plants across the United States. The EPA counters that its new rules are a public health protection initiative, and would cost power-plant operators about $800 million a year. In lieu of this new ruling, EPA spokeswoman Melissa Harrison said, “We are reviewing the decision and will determine any appropriate further course of action once our review is complete.”

The regulatory agency also said their rules would prevent more than “30,000 premature deaths and hundreds of thousands of illnesses each year,” though critics counter those figures are a media gambit, and worse, derived from “secret science.” As reported by The Daily Caller, an internal EPA memo from 2009 advises “agency officials to tie its environmental regulatory agenda to the ‘personal worries’ of Americans.”

The appeals court, in its ruling, also said the EPA’s rule imposed overly strict limits on the 13 upwind states. “The limits would result in downwind states ‘overachieving’ air quality standards for harmful pollutants,” the court said.

Ross Eisenberg, vice president of the National Association of Manufacturers, called the court ruling a disappointment because it upholds the current regulation. “We are committed to clean air and water…but need balanced, achievable regulations that don’t leave manufacturers in constant regulatory limbo as the courts interpret overly aggressive policies,” he said.

Recently, the National Mining Association (NMA) wrote in a letter to the Washington Post that contrary to the belief that some “states find the pollution rule less onerous than feared,” many states are finding it quite onerous. “Both state-submitted carbon dioxide emission plans and the Environmental Protection Agency’s plan are made in Washington. A state plan will be ‘state’ in name only because the EPA must approve it. If past is prologue, the EPA won’t approve a plan that does not meet its targets and timetables.”

The EPA is also expected to release a final rule next week on an historic plan to limit carbon dioxide (CO2) emissions from coal-fired power plants. “EPA Administrator Gina McCarthy has said the agency will be flexible and work with states on the first-ever controls on power plants for the gases blamed for global warming.” But as reported here, by “cobbling together CO2 with soot and ozone, the White House can produce misleading ‘fact sheets’ that have little to do with global warming and more to do with keeping campaign promises.”

Sources have told the final Clean Power Plan will be announced August 3. According to the NY Times, the EPA will relax some of the deadlines by up to two years, though the gesture is largely meaningless. Interestingly, since the Clean Power Plan was announced in June 2014, it has garnered over four million public comments (see footnote below)*. A quick perusal of a sampling of the non-discarded comments show most people are not in favor of the plan, or aspects of the plan, and it’s doubtful the EPA will address those concerns.

Part of the Clean Power Plan requires each state to create its own State Implementation Plan (SIP). The EPA defines a SIP as a “detailed description of the programs a state will use to carry out its responsibilities under the Clean Air Act. State Implementation Plans are collections of the regulations used by a state to reduce air pollution.”

As the NMA noted, “This means states are forced to accept the EPA’s implausible assumptions about their energy systems, which has caused seven governors to suggest that they may not submit a state plan.” If a state doesn’t submit a SIP, the EPA can step in and create one for the state. But given the “EPA’s limited legal authority and lack of technical competence to run a state’s electric grid, a federal plan must be less ambitious with substantially lower reduction targets and therefore less costly for ratepayers.”

Either way, industry experts and even the EPA admit that one thing is certain: higher electricity rates for all residential and business consumers. The most affected by the EPA’s new plan will be the poor and middle class, who are already feeling the financial impacts from coal-powered plants being shuttered. Meanwhile, China and Indie have ramped up production of coal-fired power plants, making the EPA’s reams of new rules and regulations largely worthless.

The National Association of Manufacturers (NAM) also weighed in on the crop of new rules, specifically the new ozone-reduction rule, by writing a letter to President Obama and urging him to retain the current ozone level standards. “Businesses and manufacturers are committed to ensuring a clean and safe environment and have played a critical role in improving ozone levels by 33 percent since 1980. However, this regulation threatens to handcuff manufacturers, stunt job creation and is far from the balance needed,” the NAM said in a press release.

* The EPA says only about 33,000 are unique comments and not part of mass mailing campaigns (which get discarded by software filters looking for duplicates), and of those, only 1,700 provide thoughtful and in-depth analysis. And of those, the EPA can decide which comments it will accept and include in its “Response to Comments” document.