Wednesday, August 22, 2012

Federal Appeals Court Upholds Texas Challenge to EPA Power Plant Pollution ... - Dallas Observer (blog)

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Luminant's Big Brown Plant
A split three-judge panel of a federal appeals court rejected an EPA rule that would curb the drift of harmful power plant pollutants across state lines. The agency, the majority ruled, had overstepped its authority under the Clean Air Act.

The legal challenge was mounted by a number of states and industries, including Texas and Dallas-based power generator Luminant. Last summer, the company threatened to idle two generating units at its Monticello plant if it was forced to comply with the rule, which would require vast reductions in nitrogen oxide and sulfur dioxide emissions. Both are precursors of fine particulate matter, a pollutant capable of traveling hundreds of miles on the wind and causing chronic obstructive pulmonary disease, or COPD. Based on how much an upwind state's emissions contribute to a downwind state's failure to meet federal pollution standards, the agency set regional limits and allowed polluters to trade a finite number of allowances per ton of pollutant.

The problem, as the majority sees it, is that the EPA drew up a federal plan for state-by-state reductions without first letting states submit their own. The agency, the judges said, was forcing upwind states to guess at what their "good neighbor" reductions would need to look like What's more, they worry that some states may be required to reduce emissions by more than their fair share.

The majority was quick to point out that its ruling had nothing to do with the merits of the policy.

The dissent, penned by U.S. Court of Appeals for the 5th Circuit Judge Judith Rogers, on the other hand, found that the EPA was not obligated to calculate a state's contribution to downwind pollution under the Clean Air Act. States are responsible for operating sophisticated air monitors, she notes, and are no strangers to modeling the interstate movement of pollution. The circuit judge suspected the parties in this case had other motives for not submitting their own plans. "(T)heir reason for not doing so appears to stem from insistence (supported by industry sources) that their reduction of emissions not be one iota greater than is necessary for downwind States to attain and maintain (federal air quality standards)."

At any rate, the judge writes, these complaints should have been brought during the rule's comment period, when states and stakeholders had an opportunity to weigh in on its eventual form. To strike down the law at this stage, Rogers implied, looks a lot like judicial activism.

"The court ignores Congress's limitations on the court's jurisdiction and decades of precedent strictly enforcing those limitations and proceeds to do violence to the plain text of the (Clean Air Act) and EPA's permissible interpretations of the CAA, all while claiming to be 'apply[ing] and enforc[ing]' the statute as it's now written.

"The result is the endorsement of a 'maximum delay' strategy for regulated entities, rewarding States and industry for cloaking their objections throughout years of administrative rulemaking procedures."

Pending a replacement, the court will leave in place the rule's predecessor, the Clean Air Interstate Rule. It was invalidated by the court in 2008 because some states would be able to acquire so many pollution credits they wouldn't actually have to reduce their emissions. Texas and electricity generators responsible for the majority of airborne pollution were handed a decisive victory -- the continuance of the status quo.

"With this litigation behind us, we look forward to continuing to provide safe and environmentally responsible operations across our generation fleet and to meeting or outperforming all environmental laws and regulations," Luminant CEO David Campbell said in a release.

Luminant is a subsidiary of Dallas-based Energy Future Holdings, which, we noted recently, may be preparing its power plant and retail electricity assets for bankruptcy. Had the court upheld the rule, the generator would have been forced to retrofit its aging coal-fire fleet with modern pollution control devices.

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