Judge Aghast EPA Didn’t Seek Emissions Cuts Beyond 2017

Photographer: Luke Sharrett/Bloomberg via Getty Images

  • EPA defends its approach to reducing power plant emissions of nitrogen oxide
  • Judges try to sort out whether EPA can ignore deadlines for meeting ozone standards

A federal appellate judge expressed astonishment Oct. 3 at the EPA’s acknowledgment that the agency didn’t seek cuts in smog-forming pollution beyond 2017 in a rule designed to help 22 states meet federal ozone standards.

U.S. Court of Appeals for the District of Columbia Circuit Judge Patricia A. Millett’s reaction came during oral arguments over the 2016 update to the Cross-State Air Pollution Rule that targeted transport of power plant emissions that were driving downwind states out of compliance with national air quality standards. Millett said that was a clear violation of a D.C. Circuit’s 2008 decision in North Carolina v. EPA.

The Clean Air Act requires states to control emissions that cross state lines and prevent neighboring areas from meeting national air quality standards for ozone and other pollutants. In 2008, the D.C. Circuit directed the Environmental Protection Agency to ensure that the emissions levels it it set for upwind states to help downwind states meet the national ozone standards were consistent with the deadlines.

For the 2016 transport rule, this meant EPA had to make sure the downwind states were able to meet the deadline for the 2008 ozone standard no later than July 2018, something the EPA conceded upwind states would not be able to meet in the regulation.

Justice Department attorney Amy Dona said the EPA did provide a partial remedy to reduce power plant emissions of nitrogen oxide for the 2017 ozone season in its regulatory update, but the rule didn’t apply for ozone seasons in 2018 and beyond.

Millet also showed surprise when Dona said the 2016 update was only a partial remedy. Dona said the EPA has yet another proposal that will fulfill its obligations to help downwind states struggling with transported power-plant pollution meet the 2008 national ozone standard of 75 parts per billion.

“You don’t even have a partial remedy to control emissions after 2017. You don’t have anything,” Millett said, after listening to Dona justify why the EPA chose this approach.

Stepwise Approach

Dona said the D.C. Circuit itself allowed a step-by-step approach to reducing pollution.

The EPA’s 2016 regulation sets nitrogen oxide emissions budgets for utilities in 22 states across the eastern U.S. Power plants are the largest sources of nitrogen oxides, a precursor to ozone. Ozone causes health problems, especially for children, the elderly, and people with asthma.

The 2016 regulation has been challenged by environmental groups and downwind states such as Delaware, Maryland, New Hampshire, and New York that claim the regulation doesn’t require enough cuts in power-plant emissions. The rule also faces lawsuits from the electric utility sector and a coalition of mostly upwind states, led by Wisconsin, which argued the EPA demanded too much.

Until Dona’s admission, Judges Millett, Sri Srinivasan and Robert L. Wilkins were grappling with why the EPA didn’t hold the power plants to a firm deadline of meeting the 2008 standards. They were trying to understand whether the EPA has discretion to push back the deadlines to meet federal ozone standards.

Earthjustice attorney Neil Gormley, who represented the Sierra Club and Appalachian Mountain Club, argued the Clean Air Act allows the agency to require pollution cuts at power plants that can be met “expeditiously as practicable,” but doesn’t absolve it from meeting the deadlines.

The Sierra Club has received funding from Bloomberg Philanthropies, the charitable organization founded by Michael Bloomberg. Bloomberg Environment is operated by entities controlled by Michael Bloomberg.

Inquired About Flexibility

Millett asked whether the law “locksteps” the EPA into requiring compliance deadlines, while Srinivasan and Wilkins questioned the authority the agency has in giving states and their sources flexibility to meet these standards.

The EPA’s obligation was to prohibit significant contribution of the pollutant right away, meaning by October 2016 when the rule was published, Gormley said.

Gormley and Delaware Deputy Attorney General Valerie Edge called upon the court to return the rule to the EPA for a rewrite, but not to vacate it. That would leave the current statewide emissions caps in place while the agency redid them, rather than removing the regulation off the books completely.

E. Carter Chandler Clements, a Hunton Andrews Kurth LLP attorney who represented the electric utility groups, defended the EPA regulation from the environmental arguments, calling it reasonable and feasible for the sector. She told Millett that the EPA gave the flexibility based on knowing it was impossible for the power plants to install controls for nitrogen oxides.

Wisconsin v. EPA, D.C. Cir., No. 16-1406, argued 10/3/18.

To contact the reporter on this story: Amena H. Saiyid in Washington at asaiyid@bloombergenvironment.com

To contact the editor responsible for this story: Rachael Daigle at rdaigle@bloombergenvironment.com