US Court Slaps Down Pollution Law
by Jeff Tollefson
A US appeals court struck down landmark air-pollution regulations on Friday,
shocking both environmental and industry groups with a decision that could
severely hamper efforts to curb smog and acid rain.
The ruling, which one environmentalist called "the legal equivalent of a
dirty bomb," threatened to overshadow a separate decision Friday by the
Environmental Protection Agency (EPA) to delay potential regulations for
carbon dioxide under the Clean Air Act.
Though many had expected the carbon dioxide non-decision,
environmentalists were blindsided by the court's decision to throw out the
Clean Air Interstate Rule (CAIR), a programme designed to reduce East Coast
air pollution by cleaning up coal-fired power plants in the Midwest.
"It is without a doubt the worst news of the year when it comes to air
pollution," says Frank O'Donnell, president of Clean Air Watch, an
environmental group based in Washington DC.
Clean-air conundrum
The 2005 rule created a market-based programme that allowed utility
companies to buy and sell permits in order to meet new limits set for
sulphur dioxide and nitrogen oxide emissions. Many within the utility
industry supported the programme, but the state of North Carolina and a
number of power companies challenged various aspects of the law, including
how the permits were distributed.
This Friday, acknowledging the potential consequences of “interfering with
environmental protection,” the District of Columbia Circuit Appeals Court
called the program “fundamentally flawed” and ordered the EPA to start anew.
“The CAIR was an innovative clean-air rule, one of the real shining stars in
the last several years,” says Scott Segal, a lobbyist with Bracewell &
Giuliani in Washington DC. “I think it attracted widespread support in the
environmental, industrial and power sectors.”
The EPA says the regulations would reduce sulphur dioxide emissions by 70%
and nitrogen oxide emissions by 60% compared with 2003 levels, delivering an
estimated US$85–100 billion in health benefits annually by 2015.
EPA Administrator Stephen Johnson said he was “extremely disappointed” and
has not yet determined how to proceed. More generally, however, he said the
ruling underscores his view that major regulatory initiatives — including
global-warming regulations — are better addressed at the congressional level
to minimize the chances that a single court ruling will erase years of work.
Carbon futures
Johnson’s decision to delay global-warming regulations came as a response to
a 2007 Supreme Court ruling that the EPA has the authority to regulate
carbon dioxide as a pollutant under the Clean Air Act. The court ordered the
EPA either to regulate carbon dioxide from vehicles or to come up with a
legal justification for why it does not have to.
Many within the agency pushed to issue suggestions for how automobile
emissions would be regulated, but Johnson decided instead to issue an
'advanced notice of proposed rulemaking' without any specifics. In a news
briefing, Johnson said the issue is far too complex to deal with under the
current laws. “If the nation is serious about regulating greenhouse gases,
the Clean Air Act is the wrong tool for the job,” he said. “It’s really at
the foot of Congress to come up with good legislation that cuts through what
will likely be decades of litigation and regulation.”
Lisa Heinzerling, a professor at the Georgetown University Law Center in
Washington DC, questioned Johnson’s logic about court challenges. She points
out that even if Congress does pass a comprehensive global-warming law, the
EPA will still need to follow up with regulations, which would likely be
challenged in court anyway.
“Most people think it would be a good thing if Congress stepped in and
tailored a solution to this problem,” she says. “But I don’t think it’s
crazy to think that while they are dithering, the EPA could say, ‘Here are
some things we can do right now’.”
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