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A new era of clean air regulation is dawning

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Cally Carswell | May 01, 2014 04:00 PM

Court rulings are not typically repositories of poetic prose. But they occasionally contain beautiful little gems, like this quote from the King James Bible, embedded in Justice Ruth Bader Ginsburg's majority opinion in a clean air case the Supreme Court ruled on this week: "The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth."

The thing about the wind is that it goeth where it pleaseth, ignoring the political boundaries we humans have drawn around our cities, states and nations. Frequently, it blows pollution created in one state into another state. Heck it even delivers soot from China to the West Coast. And that makes air pollution tricky to regulate. What is an unlucky downwind state to do if it falls out of compliance with air quality standards because of pollution drifting over from its neighbors, pollution over which it has no control?

Wind
Photo courtesy Flickr user Hartwig HKD.

Anticipating such a conundrum, Congress wrote a "good neighbor provision" into the Clean Air Act, barring states from "significantly contributing" to downwind states' failure to meet air quality standards. The U.S. Environmental Protection Agency first used its power to ensure interstate neighborliness in the late 1990s, with a plan for managing drifting nitrogen oxides. Then, in 2005, the Bush Administration created a new but similar rule to reduce sulfur dioxide and nitrogen oxides. That rule was overturned by a lower court in the administration's twilight. So, in 2011, the Obama Administration crafted its own "cross-state air pollution rule," often called the "transport rule," and it was stricter than the Bush version. It was the validity of this rule that the Supreme Court just considered, and upheld, reversing a lower court decision that had tossed out the regulation in its entirety.

On its face, the decision doesn't matter much to Westerners because the transport rule applies only to Washington D.C. and 27 Eastern states, where there is a higher concentration of big, old coal plants, especially in the Midwest, and where prevailing west-to-east winds blow their soot and smog-forming emissions to their neighbors and beyond. In the East, the regulation is expected to force significant new cuts in sulfur dioxide and nitrogen oxides pollution from some coal plants.

But the ruling may have implications for other major clean air cases making their way through the courts. Since the Clean Air Act itself is not crystal clear on how the EPA must go about tackling the complex problem of pollution that travels between states, the Supreme Court gave the agency leeway to interpret the law and come up with a reasonable regulation, what lawyers call "deference."

"It’s not uncommon in administrative law for courts to say, 'We’re not really experts in this policy area, so we’ll defer to (the agency that is),' " explains attorney David Pettit, director of NRDC's Southern California air program. "But EPA can be so political, that it’s a little surprising and satisfying to see the courts say (that here too)."

It's a potential indication of how the High Court will approach another EPA case it's currently considering that involves whether the EPA did its due diligence in deciding to regulate carbon dioxide emissions from really, really big emitters -- namely, coal-fired power plants -- but not from a slew of small emitters, namely, every single household in the U.S. This case involves similarly complex issues, explains Ann Carlson for Legal Planet. If the court is consistent in extending similar deference to the agency to reasonably tackle those issues, that may mean a ruling upholding EPA's approach to carbon dioxide regulation.

The transport rule decision is also one indication that an era of clean air policy is ending and another dawning. It's one of a suite of new regulations that, once implemented, could lead to the retirement of a number of coal-fired power plants.

For several years, a lot of big-deal EPA clean air regulations, like the transport rule, have been in limbo because they've been in litigation, slowing making their way through the appeals process and each successive court. Directly and indirectly, these rules more or less represent the sum total of the federal plan to mitigate climate change. That's because they address emissions from coal plants -- not always climate changing emissions, but the economics are such that some of the oldest, most polluting coal plants are likely to close rather than install expensive retrofits to control mercury or nitrogen oxides or sulfur dioxide.

Many of these cases have or are about to come to their conclusion in the courts, and the rules have largely held up. The D.C. Circuit Court recently upheld new mercury rules for power plants. The greenhouse gas decision from the Supreme Court is imminent. Lower courts have affirmed EPA's authority to regulate haze-causing pollutants from power plants. (The Supreme Court may yet take up that issue.) Carbon dioxide limits for new and existing power plants -- the most significant pending regulations from a climate perspective -- are likely still in for lengthy litigation. Still, for some of the biggest new clean air initiatives in years, we're now moving instead into an implementation phase, the time when the rules are put into practice, and the cleaning up begins.

"The power industry is saying the lights will go out, which I’m skeptical of," says Pettit. "(But) we’ll see what happens, and whether the whole coal fleet will go away or what." How many coal plants will be phased out, and what will replace them, are the big questions for both the climate and all of us electricity users.

Cally Carswell is a contributing editor for High Country News, and is based in Santa Fe, New Mexico. Follow her on Twitter @callycarswell.

Photo courtesy Flicker user Hartwig HKD.

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