EPA asks appeals court for a rehearing on the Cross State Air Pollution Rule

Environmental Defense Fund is strongly supporting today’s announcement that the U.S. Environmental Protection Agency has asked the U.S. Court of Appeals for the District of Columbia Circuit for a full court rehearing of lawsuits against the Cross-State Air Pollution Rule.

“EPA’s request for rehearing en banc is anchored in the plain terms of the statute, the court’s own case law and the imperative to enforce the good neighbor protections under the nation’s clean air laws,” said Sean Donahue. “As set out in Judge Rogers’ compelling dissent, the panel’s decision ran roughshod over basic jurisdictional requirements and left millions of Americans unprotected from harmful upwind air pollution.”

A three-judge panel of the Appeals Court, comprised of Judges Rogers, Griffith, and Kavanaugh, heard arguments on legal challenges to the Cross-State Air Pollution Rule in April.

EDF together with the American Lung Association, the Clean Air Council, NRDC and Sierra Club intervened in the case in support of EPA -- as did nine states, the District of Columbia, five major cities, and several major power companies. (Read more about court arguments or read the court briefs on our website).

In August, a deeply divided court vacated and remanded the rule. Today, EPA filed a petition for an en banc hearing – which means they’ve asked the entire Appeals Court to rehear the case.

In its petition, EPA says:

“The panel’s decision upends the appropriate relationship of the judicial, legislative, and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits, and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies. Especially in light of the enormous public health and regulatory significance of the Transport Rule, these clearly are issues of “exceptional importance.”

(You can read EPA’s full petition here)

EDF is planning to join a coalition public health and environmental groups to again intervene the case in support of EPA. EDF’s petition will be available soon.

The Cross-State Air Pollution Rule would tighten limits on the amount of sulfur dioxide and nitrogen oxide pollution that power plants in 27 eastern states are allowed to emit. That pollution drifts across the borders of those states, and exposes 240 million Americans in the “downwind” states of the Eastern U.S. to dangerous – and sometimes lethal – levels of particulate and smog pollution.

If upheld by the full court, the health and economic benefits of the Cross-State Air Pollution Rule will be enormous. Starting in 2014, the rule would:

• Save up to 34,000 lives per year
• Prevent 400,000 asthma attacks per year
• Avoid 1.8 million sick days per year
• Provide benefits of $120 to $280 billion per year

Read more about the benefits of the Cross State Air Pollution Rule, including state-by-state-benefits, on our website.

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