The EPA Cross-State Air Pollution Rule – Gone With The Wind

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Today, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit struck down the Obama Administration's Cross-State Air Pollution Rule (CSAPR – or "Transport Rule"). In a 2-1 sharply divided decision, the Court didn't just remand the rule to EPA for "reworking," it vacated the rule in toto and sent EPA back to the drawing board. The foundation of the decision is very basic – EPA extended its regulatory grasp well beyond its statutorily authorized reach.

On June 26, 2012, this same Court upheld EPA's determination that greenhouse gas (GHG) emissions "endanger public health and welfare by contributing to climate change," and that new major sources of air emissions and major modifications of existing sources must implement "best available control technology" (BACT). The next weapon in the Administration's arsenal of new Clean Air Act regulations was the Transport Rule, and strident supporters were exuberantly confident that this critical component of EPA's current, unbridled regulatory pursuits in the air pollution arena would likewise find favor with the Court. Thus, reports that came flooding in after the decision was announced resoundingly showed that even the most vocal advocates were, to put it mildly, stunned.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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