The United States Court for the District of Columbia Circuit (Court) has rejected the U.S. Environmental Protection Agency’s (EPA) Clean Air Interstate Rule (CAIR), which was the agency’s regional multistate approach to regulating SO2 and NOx.
In North Carolina v. EPA, No. 05-1244 (D.C. Cir. Jul. 11, 2008), the Court found CAIR’s regional multistate approach to be inconsistent with the Clean Air Act (CAA). The CAA, as developed in the 1970s and amended in 1990, is based upon a state-by-state approach to regulating regional emission issues. Under the CAA, if emissions from one state adversely affect downwind state(s), then the upwind state is required to impose additional controls to address the pollution problem. According to the Court, the multistate cap and trade program incorporated into CAIR is contrary to the state-based approach mandated by the CAA.
The practical effects of the Court’s ruling are:
The decision also raises significant implications for future particulate matter 2.5 micrometers or smaller (PM2.5) controls, which may include emission reductions for PM2.5 precursors that include NOx and SO2. As PM2.5 is only beginning to be subject to regulation, the effect of the decision on future PM2.5 regulation is uncertain.
Based upon past experience, the EPA is not likely to issue clarifying guidance in the near future. Thus, facilities likely will need to discuss specific issues arising from the Court’s decision with individual state regulators.
Legal News Alert is part of our ongoing commitment to providing up-to-the-minute information to our environmental clients and colleagues. If you have any questions about or would like to discuss this topic further, please contact your Foley attorney or any of the following individuals:
Mark A. Thimke
Richard G. Stoll
Leah M. Krider