DC Circuit Tosses Out EPA’s Cross-State Pollution Rule

From the SPPI blog: DC Circuit Tosses Out EPA’s Pollution Rule

Source: Madison Project

Amidst Obama’s inexorable war on American energy, consumers, jobs, and prosperity, his EPA is in the process of promulgating 4 new pollution rules that will bury the coal industry and “necessarily” raise the price of electricity on American households. They are the Cross-State Air Pollution Rule, the Mercury and Air Toxics Standards for Utilities (MACT), the Cooling Water Intake Structures regulation, and the Disposal of Coal Combustion residuals. The former two have already been finalized while the latter two are close behind. Today, the D.C. Circuit Court struck down the EPA’s authority to implement the Cross-State Air Pollution Rule.

In August 2011, Obama’s EPA imposed a cap and trade style program to expand existing limitations on sulfur dioxide and nitrogen oxide emissions from coal-fired power plants in 28 “upwind” states. They claimed that they had unlimited authority pursuant to the Clean Air Act to cap emissions that supposedly travel across state lines. The EPA admitted that the rule would cost $2.7 billion from the private sector and force many cole-fired power plants to shut down. Priorities USA might have even run an ad against Obama claiming that his superfluous regulations cause workers to lose their health insurance and die.

Luckily, several southern states decided to sue the EPA in federal court. In EME HOMER CITY GENERATION, L.P. v. EPA, the D.C. Circuit Court of Appeals ruled 2-1 that the EPA had exceeded its authority under the Clean Air Act in two 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, 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.

Judge Brett Kavanaugh, who wrote the majority opinion, created more jobs with that decision that Obama did throughout his tenure.

While this is definitely a big victory, and underscores the importance of putting conservatives on the DC Circuit Court (which has original jurisdiction over many federal policy issues), we still need to continue a robust legislative assault against these cap and trade style regulations. The Clean Air Act and Clean Water Act still serve as an albatross around the necks of job creators and can still be used to justify many of the impending regulations, even after the court’s decision.

When Republicans take back control of government, they must move to roll back most federal involvement in regulation of pollution. With the states more than happy to pick up the slack, especially the blue states, federal involvement in this regulatory scheme can only be harmful. Rules and regulations that could potentially affect the lifeline of local economies must only be debated and implemented on a local level.

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44 thoughts on “DC Circuit Tosses Out EPA’s Cross-State Pollution Rule

  1. Now it’s up to the EPA to decide if it will recognize the court’s authority in this.
    -I’m not holding my breath (pun intended)

  2. The rule of law means nothing to these people. It is clear now what Obama meant by fundamental transformation.

  3. Dear Readers:
    This article is quoted in toto from another blog. Any spelling, grammar, or punctuation errors are those of the original author. Take your Net Grammar Nanny comments there.

    This is an excellent ruling!

  4. Wow this big!

    Liberals in big cities with factories and millions of cars and truck contributing to air pollution love to point fingers at places with not air quality problem. I have never understood the theory of inverse diffusion where emissions from coal plants concentrates in cities without coal plants.

    When you check http://www.airnow.gov/ make sure you look at actual not forecast. Tomorrow is always worse.

    One of my favorite examples of an organized lie is EPA Cross-State Air Pollution Rule web site. You only have to dig a little bit to find that the health hazards EPA blames all coal is really old data and not from coal.

    If you go to another EPA web site, they brag about what a good job we are doing reducing air pollution. And we have.

    While I am certainly in favor of reducing air pollution, Obama’s EPA has declared war on coal without any consideration of cost.

  5. Let’s not throw the baby out with the bath water. I’ve been to countries bereft of pollution control, to the detriment of its citizens’ human rights to life, liberty, and the pursuit of happiness. There is no question in my mind that CO2 is NOT a pollutant. However, there is ample evidence that from time to time, human endeavors to make a buck have unleashed true and horrible pollutants. Getting rid of all pollution control efforts and/or leaving it up to the will of powerful local groups is exchanging one tyrant for another in terms of individual liberty.

  6. “While I am certainly in favor of reducing air pollution, Obama’s EPA has declared war on coal without any consideration of cost.” –Kit P.

    Yes. The main consideration may be that, by banning coal usage here, the price will drop, making it cheaper for China to buy up our huge coal reserves to feed its massive power plants through the 21st Century.

  7. Pamela – this is more about reigning in a rogue bureaucracy than containing pollution. The EPA has been operating under agenda-driven policies far too long. There is an intelligent way to accomplish the goal of pollution control without tossing out the economy with the bath water.

  8. Pamela Gray August 22 , 2012 a 8:34 am , I disagree totaly with your idea the feds should be involved in regulation of anything within the bounds of state lines . The states should individualy have the authority to regulate themselves while only involving the feds when disagreements arise between states and even then the courts should be the ones to rule . The EPA is a good example of the insanity that prevails when beaurocrats have control .

  9. The EPA admitted that the rule would cost $2.7 billion from the private sector and force many cole-fired power plants to shut down.

    “cole-fired” ==> “coal-fired”

  10. The only way to truly reign in the EPA and every other government agency gone wild is to cleanse the White House, Senate and House of Representatives of all the leftist/liberal/progressive democrats. For those of you who don’t think this is a political issue, you haven’t been keeping track of who is doing what.

    Jay Davis

  11. “Amidst Obama’s inexorable war on American energy, consumers, jobs, and prosperity,”

    I think that’s probably the best point in the whole article. At some point it has to dawn on Obama that he is borrowing money from China that was earned from economic activity that was driven out of the USA. The economic activity that he seeks to strangle to save the planet from climate change doesn’t die, it simply moves to a jurisdiction where it is exempt, and generates the very money that he needs to borrow because he no longer has the tax revenue from that same economic activity. So the regulations do exactly zero to save the planet, destroy the American economy, and then he borrows the money from the off shore economy he created which must be re-paid with interest which creates the false prosperity that is causing economic collapse in Europe.

    In business we talk about achieving “win-win”. This is “lose-lose-lose”.

  12. Pamela Gray says:
    August 22, 2012 at 8:34 am
    “Getting rid of all pollution control efforts and/or leaving it up to the will of powerful local groups is exchanging one tyrant for another in terms of individual liberty.”

    I hope you don’t mean to imply this ruling rolls back all limitations on emissions. It just means we continue to use the older cap and trade system for SO2 and NOx called CAIR, the Clean Air Interstate Rule. It also means EPA can’t make emitters control more than the law requires and that the emissions must actually cross a state border before you can use this rule to regulate them. Imagine that.

    The “Big Enviro” commenters (like the NRDC and Sierra Club) suggest thousands of deaths will be caused by this ruling. Show me the bodies.

  13. Pamela Gray: There is some room for a scaled down clean air act and clean water act, but these laws as written give carte blanche to any zealot in power to invent whatever “science” they want in order to punish large portions of the economy and ultimately enslave the populous. If the bills were written correctly, there would be almost no “rule-making authority” in the federal government. Congress has been derelict in its duty in not passing the specifications directly. The phrase “the secretary shall determine” creates limitless power for federal political appointees with very little check and balance, and allows the EPA administrator to cherry pick data to make a finding of danger to regulate just about anything. The EPA could literally outlaw food if they could make the finding that it somehow affected water or air quality by some imperceptible amount. There has already been a move on bakeries for their wanton release of CO2 by the yeast rising the bread. Where will it end. When the government can regulate energy and food, there is no freedom for the people in anything. The ultimate tyranny is sitting starving in the dark due to government action.

  14. Obama is 100% for international socialism.
    Why do you think socialist Norway gave him the peace price for no obvius reason?

  15. Pamela Gray says:
    August 22, 2012 at 8:34 am

    Let’s not throw the baby out with the bath water. I’ve been to countries bereft of pollution control, to the detriment of its citizens’ human rights to life, liberty, and the pursuit of happiness. There is no question in my mind that CO2 is NOT a pollutant. However, there is ample evidence that from time to time, human endeavors to make a buck have unleashed true and horrible pollutants. Getting rid of all pollution control efforts and/or leaving it up to the will of powerful local groups is exchanging one tyrant for another in terms of individual liberty.

    The EPA has stopped being an environmental protection agency, they have become an industry prevention agency.

    An analogy:

    ** Everyone believes that it is a good idea to have clean well functioning drains.

    ** Some people may disinfect their drains.

    ** The EPA would enforce regulations that the drains be kept sterile at all times disallowing their use as drains – because bad drains are a health hazard.

    The EPA regulations are just a roundabout way of closing down the fossil fuel industry.
    The EPA are also working on imposing industrial dust standards for micro particulates on farmland. Preventing farming from being carried out.

    The EPA should be defunded as soon as possible as they are successfully carrying out an end-run around Congress and imposing by regulation restrictions that Congress has voted down as laws. Ideally every EPA regulation from 2000 onward should be rescinded until approved by Congress as a formal single issue vote. Each regulation to have a ‘sunset clause’ requiring a vote every say 4 years to keep the regulation in place.

    The EPA would be better constructed if it were a conference of state representatives from individual state environmental agencies.

  16. Michael J says:
    August 22, 2012 at 9:10 am
    “cole-fired” ==> “coal-fired”

    Here’s your sign. :)

  17. johnmcguire says:
    August 22, 2012 at 9:08 am
    Pamela Gray August 22 , 2012 a 8:34 am , I disagree totaly with your idea the feds should be involved in regulation of anything within the bounds of state lines . The states should individualy have the authority to regulate themselves while only involving the feds when disagreements arise between states and even then the courts should be the ones to rule . The EPA is a good example of the insanity that prevails when beaurocrats have control .

    I agree that the EPA is out of control. But air pollution is clearly NOT within the bounds of state lines. Water pollution going into interstate navigatable waterways such as the Mississippi are NOT within the bounds of state lines. Clearly the sort of thing the federal government should be doing. But it should be doing it by law, not by regulation.

  18. “However, there is ample evidence that from time to time, human endeavors to make a buck have unleashed true and horrible pollutants.”

    Did you know that for such federal groups as EPA and OSHA, their regulations have actually impeded development of cleaner and safer surroundings? I know someone who was the CEO of a utility for almost 30 years. He told me they would be approached by the EPA over the years with an offer to use their scientists to retrofit their company to meet some new EPA regulation. He said they always turned them down because EPA science was so far behind the times. He also said that the EPA wanted to extend special loans so that later the EPA officials could claim that all the improvements came as a result of the EPA. They just went ahead and did everything themselves in a way that was far cheaper than using the EPA would have been with results that were far better. Besides, the EPA is responsible for hundreds of millions of cases of sickness and death from malaria because of the political decision made by a single administrator. The most polluted places on earth in modern times have been in countries with total political control, such as the former Soviet Union and China. Local control has the benefit of limiting damage and sparking innovation. That, together with a good tort system, in which those who have experienced harm can sue for compensation. This, of course, does not include activist groups who have been given automatic standing to sue on behalf of some group who has not yet suffered any harm. This abuse of the tort system has itself cost the economy dearly.

  19. And USA have finnaly realised that a war on “global warming” is actually a war on use of energy and to kill economic growth?

  20. The EPA is a bureaucracy. The problem inherent to any bureaucracy is that it can make regulations that have the effect of law but were never voted on. That’s bad. The EPA is part of the Executive Branch, not the Legislative Branch of the US Government. The Executive Branch is not supposed to have legislative powers.
    The EPA needs to be more accountable to Congress. They are supposed to be internally regulated by actual science. They are no longer. They are a tool used to promote an agenda, not protect the environment for our citizens.
    A gun in the hands of an honest citizen is a good thing. A gun in the hands of a criminal is not.

  21. Let’s review the syle book, shall we?

    reign: what a king does
    rein(s): how you control a horse, or the EPA
    rain: drops keep fallin’ on my head

  22. PS The USEPA has mandated “lead free” brass for potable water fixtures in the US (modeled on the California regs) and it will soon be implemented (Check with your state EPA to see when.). The price of brass fixtures is going to rise, maybe even double. (The lead in brass alloys help the molten metal to fill all the voids during casting. No lead, more voids, more rejects.) If you have any home improvement projects that involve plumbing, don’t wait to long to buy the fixtures. And when your water bill goes up, part of that will reflect the increased cost of replacing/repairing brass fixtures in the distribution system. (If a brass valve or meter is opened to replace a part, if it’s not already “lead free” brass, the whole thing will need to be replaced.)

  23. Pamela Gray says:
    August 22, 2012 at 8:34 am

    No one is saying that we should get rid of ALL pollution controls. At least I’m not. What this excellent ruling is saying is that no one should be bootstrapping new, unauthorized rules upon existing law, to carry out an agenda to destroy an entire industry, as in the case of the Obama administration trying to destroy the coal industry.

    The Cross-State Pollution Rules are a difficult enterprise as it is without the bootstrapping. Considering how much background ozone there is everywhere (in the form of VOCs emitted by plants and other non-point sources, as EPA has often admitted), their efforts to directly address what contributions come from other states and what do not is often an exercise in guessing and political gamesmanship. At least the D.C. Circuit recognizes a rule of law that sets some limits on EPA’s political agenda.

  24. Barbee says:
    August 22, 2012 at 8:15 am

    Now it’s up to the EPA to decide if it will recognize the court’s authority in this.
    -I’m not holding my breath (pun intended)

    The IRS refers to its unilateral selection of court rulings to ignore as being in “a state of non-acquiescence”.

  25. Pamela Gray
    August 22, 2012 at 8:34 am
    ###

    And all those places with horrible pollution have Marxist governments of the type the EPA is trying to bring to the US! The EPA did very little but take credit for something that would have happened anyway because we use to be a wealthy nation with the resources to take care of our environment, and a population who cared ( which is why the EPA exists in the first place) enough to do something about it. The EPA has always been just a tool to use environmental concern as an excuse to force policies designed to destroy capitalism. Once their goal of turning the US into a socialist utopia is achieved, there will no longer be the resources to protect the environment. It is candy coated cyanide.

  26. Alan Watt, Climate Denialist Level 7 says:
    August 22, 2012 at 10:59 am

    Barbee says:
    August 22, 2012 at 8:15 am

    Now it’s up to the EPA to decide if it will recognize the court’s authority in this.
    -I’m not holding my breath (pun intended)

    The IRS refers to its unilateral selection of court rulings to ignore as being in “a state of non-acquiescence”.

    It would be best if the occasional judge were to take contempt proceedings against the individuals in the agencies. However, it is amazing how fast the change in attention to rulings can be when Congress starts talk of defunding. Unfortunately,with the current (deliberately( stymied set up that will not occur. After January things may become different. Subject to the scorched earth actions to be expected from a lame duck session in November/December.

  27. Pamela Gray says:

    August 22, 2012 at 8:34 am

    Pamela is correct, of course. AND, no, she is not advocating the roll back of pollution laws. Like me, I believe she is saying that pollution regs are a requirement of a modern industrial society and as such should be enforced. However, as with all regs, there needs to be flexible pollution management which, if it exceeds the limits preset, can still be controlled by the lawmakers.

    The only fly in that ointment is finding a lawmaker anywhere in the world with anything other than cabbage between their ears and greed in their pockets.

  28. jayhd says:
    August 22, 2012 at 9:11 am
    The only way to truly reign in the EPA and every other government…

    Although not a leftist or liberal I have to somewhat disagree with your statement.

    The only way to rein in the federal, state and local governments is to eliminate politics as a career and return it to what the founding fathers wanted which is more of a volunteer type set up (do your duty and then let the next group do theirs). The current political landscape with huge and un-sustainable retirement benefits makes once elected officials (of either party) only interested in becoming re-elected and appeasing only those who support their re-election. Thus you do not see many politicians tackling the big problems we face as a country. With the 2 party system as it is all the politicians do is try to divide and polarize instead of working together for all the people. Our officials tend to forget that they also represent those people in their districts that did not vote for them!

  29. We need sensible risk-factors analysis rather than the precautionary principle when it comes to making anti-pollution laws.

  30. polistra says:

    “They’re all identically evil.”

    No, they’re not. The choice is always between the lesser of two evils. It is irresponsible to not make that clear choice.

  31. Voting for the lesser of two evils, whatsoever has it got us? but more evil?

    I stand with Pamela … nothing wrong with running with natural gas as it looks now. Coal will always be there.

    Personally, if somebody can show backbone and do something about this revolving slush fund, they’d get my vote. Too big to fail, now bigger than ever. They need busted up!

  32. The only way you can ever really do anything with EPA overreach is to out spend this family.

    http://walmart1percent.org/family-tree/sam-r-walton/

    Nixon and Reagan were Alpha Kappa Psi brothers to Sam. This is how trade laws that protected our job producing businesses just fine for almost 200 years got compromised. Remember the famous trip Nixon made to China making the Communists a preferred trading partner? That was done for Sam. EPA was probably set up for Sam. They were all quail hunting buddies, Bushes and Clinton too. Look it up. Power and money. Sam practically made them all. Especially the Clinton’s public service careers.

  33. Cheap abundant energy enabled the building of America.

    America once again has the huge competitive advantage of cheap abundant energy.

    You CAN rebuild your economy AND your manufacturing sector based on this cheap abundant energy.

    However, you will have to counter the powerful forces that view this economic rebirth as a disaster for the environment*.
    For example (and see below):
    ”Isn’t the only hope for the planet that the industrialized civilizations collapse? Isn’t it our responsibility to bring that about?” – Maurice Strong, Founder of the UN Environmental Program
    For the record, I don’t agree with this position, and I have a strong predictive track record in energy and the environment.

    In comparison, the “forces of darkness” have a long history of failed predictions, and a pathological predisposition towards catastrophism and philosophical incompetence.

    In contrast, I view the possible economic demise of America as the real disaster for humanity.

    Despite its flaws, America is still the greatest hope for human rights in the world today.

    I wish all of you a pleasant evening.

    - Allan MacRae

    ************

    * Source:

    http://www.green-agenda.com

    Excerpts:

    “Complex technology of any sort is an assault on
    human dignity. It would be little short of disastrous for us to
    discover a source of clean, cheap, abundant energy,
    because of what we might do with it.”
    - Amory Lovins, Rocky Mountain Institute

    “The prospect of cheap fusion energy is the
    worst thing that could happen to the planet.”
    - Jeremy Rifkin,
    Greenhouse Crisis Foundation

    “Giving society cheap, abundant energy would be the
    equivalent of giving an idiot child a machine gun.”
    - Prof Paul Ehrlich, Stanford University

    “The only hope for the world is to make sure there is not another
    United States. We can’t let other countries have the same
    number of cars, the amount of industrialization, we have in the US.
    We have to stop these Third World countries right where they are.”
    -Michael Oppenheimer,
    Environmental Defense Fund

    “Global Sustainability requires the deliberate quest of poverty,
    reduced resource consumption and set levels of mortality control.”
    -Professor Maurice King

    “We’ve got to ride this global warming issue.
    Even if the theory of global warming is wrong,
    we will be doing the right thing in terms of
    economic and environmental policy.”
    - Timothy Wirth,
    President of the UN Foundation

    “No matter if the science of global warming is all phony…
    climate change provides the greatest opportunity to
    bring about justice and equality in the world.”
    - Christine Stewart,
    former Canadian Minister of the Environment

    “The data doesn’t matter. We’re not basing our recommendations
    on the data. We’re basing them on the climate models.”
    - Prof. Chris Folland,
    Hadley Centre for Climate Prediction and Research

    “The models are convenient fictions
    that provide something very useful.”
    - Dr David Frame,
    climate modeler, Oxford University

    “I believe it is appropriate to have an ‘over-representation’ of the facts
    on how dangerous it is, as a predicate for opening up the audience.”
    -Al Gore,
    Climate Change activist

    “It doesn’t matter what is true,
    it only matters what people believe is true.”
    - Paul Watson,
    co-founder of Greenpeace

    “The only way to get our society to truly change is to
    frighten people with the possibility of a catastrophe.”
    - emeritus professor Daniel Botkin

    “The climate crisis is not a political issue, it is a moral and
    spiritual challenge to all of humanity. It is also our greatest
    opportunity to lift Global Consciousness to a higher level.”
    -Al Gore,
    Nobel Peace Prize acceptance speech

    “We are on the verge of a global transformation.
    All we need is the right major crisis…”
    - David Rockefeller,
    Club of Rome executive member

    “We must make this an insecure and inhospitable place
    for capitalists and their projects. We must reclaim the roads and
    plowed land, halt dam construction, tear down existing dams,
    free shackled rivers and return to wilderness
    millions of acres of presently settled land.”
    - David Foreman,
    co-founder of Earth First!

  34. Most coal burnt in the US is low sulphur coal which results in lower emissions without drastic alterations to the station smoke stacks.
    Any limitations imposed on the EPA can only be good for America as a whole.

  35. Perfection is the enemy of good. Good pollution controls cost very little. Perfect pollution controls are infinitely expensive and impossible to achieve.

    The EPA and other government agencies are using this very basic economic reality to implement agenda based policies. By requiring perfection, the government can drive any sector of the economy out of business.

    This allows insiders to invest ahead of the curve. Friends of government, the political backers know ahead of time where to invest, because they know where the money will flow ahead of everyone else.

    Why else would politicians take jobs that cost millions to obtain, and return thousands in pay? Over time this corrupting influence robs the citizens of the country of their wealth, their pensions and their houses.

  36. TC in the OC says:
    August 22, 2012 at 12:07 pm
    The only way to rein in the federal, state and local governments is to eliminate politics as a career and return it to what the founding fathers wanted which is more of a volunteer type set up (do your duty and then let the next group do theirs).
    =========
    We select jurors based on a lottery, for life and death decisions. Imagine if we selected jurors like we did politicians – would you trust the courts to rule fairly?

    500 citizens selected at random every 4 years to govern would do a much better job than the current lot. Anyone that wants to be a politicians should be automatically disqualified from politics.

  37. I think the EPA should be disbanded entirely. What’s a few government jobs compared to all the jobs the EPA has cost people across the country?

  38. Don’t have the exact reference, but the 2010 Ig Noble Awards gave the Management research prize to a study that demonstrated the superiority of random selection of employees to promote into vacant management jobs over HR and “merit” systems — the firms do better!

  39. ferdberple says:
    August 23, 2012 at 7:02 am

    TC in the OC says:
    August 22, 2012 at 12:07 pm

    We select jurors based on a lottery, for life and death decisions. Imagine if we selected jurors like we did politicians – would you trust the courts to rule fairly?

    500 citizens selected at random every 4 years to govern would do a much better job than the current lot. Anyone that wants to be a politicians should be automatically disqualified from politics.
    ===========================================================================

    I have been advocating exactly this for 20+ years – nice to see someone else recognises this as our (possibly last) best chance to answer the question ‘Who will guard the guardians’?

    However I suspect that even this will not work unless we :

    1/ Eliminate all Hard-left ‘entryists’ from all areas of public life – including NGO’s and ‘charities’
    2/ Make citizenship a reward dor service (military or Labour/ both ?) and enforce political studies to enable all people from Junior school up to be able to recognise and combat ‘entryism’ when they see it.

    Some of you will see Heinlein’s ideas in there I guess.

    In 1991 we were all happily celebrating that the ‘ship of fools’ had finally run aground, we didn’t even notice the hard left cockroaches had scuttled into organisations like Greenpeace, WWF, The Greens etc, same as it was not recognised in the UK/Aus in the 50′s as they took over the Unions.

    Unless we can find an answer to this they will just keep crawling back out of the sewers…

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