by Matthew L. Wald
WASHINGTON â A federal appeals court on Tuesday overturned a federal rule that laid out how much air pollution states would have to clean up to avoid incurring violations in downwind states.
The decision sends the Environmental Protection Agency, and perhaps even Congress, back to the drawing board in what has become a long and paralyzing argument over how to mesh a system of state-by-state regulation with the problem of industrial smokestacks pumping pollutants into a single atmosphere.
In a 2-to-1 ruling, a panel of the United States Court of Appeals for the District of Columbia said the E.P.A. had exceeded its authority in the way it apportioned the cleanup work among 28 upwind states.
The agency was trying to address a problem that has vexed the air pollution control system for at least three decades: how to deal with states whose own air meets standards but whose power plants, refineries and other industrial plants emit sulfur dioxide and nitrogen oxide pollutants that â wind-aided â prevent neighboring states from attaining the level of cleanliness required under federal law.
The rule thrown out on Tuesday, called the Cross-State Air Pollution Rule, was the agency’s attempt to fix an earlier version, the 2005 Clean Air Interstate Rule, which in 2008 a court ordered the E.P.A to make changes in. Analysts suggested that it would take several years to rewrite the rule rejected on Tuesday.
The appeals court said the E.P.A. had been authorized to set rules that would require upwind states “to bear responsibility for their fair share of the mess in downwind states.”
Rather than apportion the reductions according to the amount of pollution that each upwind state was contributing, the E.P.A. was seeking to require cleanup according to the cost of the reductions, so that the work would get done in the places where the cost of capturing a ton of sulfur or nitrogen oxides was the lowest. The agency was seeking to create a trading system in which the states could buy and sell pollution credits, with the actual work being done in the places where it was easiest to do it.
But the court said that under this scheme, the agency had improperly required states “to reduce their emissions by more than their own significant contribution to a downwind state’s nonattainment,” according to the opinion, written by Judge Brett M. Kavanaugh and joined by Judge Thomas B. Griffith.
At the Bipartisan Policy Center, a nonprofit institution that specializes in energy and pollution issues, Joe Kruger, the director for energy and environment, said, “E.P.A.’s efforts to reduce the cost of cutting pollution by using market trading keep running up against the limitations of the statute.”
“Without Congressional intervention,” he said, “we will be left with more pollution in the near term as well as a higher cost of mitigation in the long run.”
The court said the E.P.A.’s rule also violated the Clean Air Act because it did not let the states submit their own plans to comply and imposed a federal plan instead. The statute left it to the states to decide how they would meet federal standards.
Judge Judith W. Rogers dissented from the ruling. She said that the states had filed their challenge late and that the court had no authority to consider it. She said the court should “give deference to E.P.A.’s permissible interpretations” where the Clean Air Act was “silent or ambiguous.”
Several power companies had challenged the E.P.A. rule, and were supported by more than a dozen states, mostly in the South and Midwest. North Carolina supported the rule, along with several Middle Atlantic and New England states.
The adversaries and the arguments have become familiar. Since the 1980s, the downwind states have been suing upwind polluters, and sometimes the E.P.A., to try to force cleanups. The relationship is complicated, though, because the upwind states are often suppliers of electricity and other products whose manufacture creates the pollution.
Many big environmental or health groups, including the Sierra Club, the Environmental Defense Fund, the Clean Air Task Force, the American Lung Association and the Natural Resources Defense Council, supported the E.P.A.’s position and were joined by downwind states and cities.
At the Sierra Club, Mary Anne Hitt, director of the group’s Beyond Coal Campaign, said in a statement, “Americans have been waiting for the clean air they deserve for decades, and the court’s ruling today further delays the Clean Air Act’s promise of safe, breathable air for our children.”
She estimated the rule could have prevented 34,000 premature deaths a year.
But Scott Segal, director of the Electric Reliability Coordinating Council, an electric utility group, pointed out that the ruling leaves the previous Clean Air Interstate Rule in place. That, he said, along with other provisions of the Clean Air Act, “ensures adequate protections remain in place to handle interstate air pollution.”
Republicans reacted by sounding a familiar theme, saying the E.P.A. had gone beyond what Congress or reason dictated, and ascribing the cleanup costs as too high.
The chairman of the House Energy and Commerce Committee, Representative Fred Upton, Republican of Michigan, said in a statement, “This is a win for American families, who, because of this rule, faced the threat of higher power bills, less reliable electricity and job losses.”