A decision by a three-judge panel has thrown a major new obstacle in the path of the Environmental Protection Agency on its long journey toward a fair rule to reduce pollution that crosses state borders. The EPA must appeal this baffling decision.
Back in 2005, the agency used its power under the Clean Air Act to propose the clean air interstate rule. But the federal appeals court for the District of Columbia rejected it in 2008 and told the EPA to write a stronger one. Last year, EPA announced its new cross-state air pollution rule.
The new rule required power plants to sharply cut their emissions of sulfur dioxide and nitrogen oxides, which contribute to smog. It covered plants in New York, but EPA data show that New York plants already emit far less of these pollutants than plants in some other covered states in the eastern half of the country, as far west as Texas. So we're a big beneficiary. The EPA said the rule could avert $280 billion in health care costs and save 13,000 to 34,000 lives annually. For this benefit, the average ratepayer would pay less than $1 a month more, and breathe better.
But now the D.C. court, in a 2-1 opinion, has overturned the rule, saying that EPA structured it improperly, trampling on states' rights. The agency could try to write another rule, but that would take a long time. Better to try to reverse the decision. In a sharp dissent, Judge Judith Rogers pointed out that Congress has been frustrated by the failure of upwind states to clean up their act and has amended the Clean Air Act to strengthen the EPA's hand. But, she argued, this decision ignores what Congress has done to limit how courts can rein in EPA.
If the full D.C. circuit won't rehear the ruling by the three-judge panel, the EPA should appeal, so we can all breathe easier.