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EME Homer City Generation, L.P. v. Environmental Protection Agency

ELR Citation: 42 ELR 20177
Nos. 11-1302, (D.C. Cir., 08/21/2012)

The D.C. Circuit vacated EPA's transport rule, also known as the Cross-State Air Pollution Rule, which sets sulfur dioxide and nitrogen oxides emissions limits for 28 upwind states based on those states' contributions to downwind states' air quality problems. The CAA's "good neighbor" provision requires upwind states to prevent sources within their borders from emitting federally determined amounts of pollution that travel across state lines and contribute significantly to a downwind state's nonattainment of federal air quality standards. Under the transport rule, upwind states may be required to reduce emissions by more than their own significant contributions to a downwind state's nonattainment. The CAA, however, grants EPA authority to require upwind states to reduce only their own significant contributions to a downwind state's nonattainment. Thus, whatever its merits as a policy matter, the transport rule violates the statute. In addition, the CAA affords states the initial opportunity to implement reductions required by EPA under the good neighbor provision. But when EPA quantified states' good neighbor obligations under the transport rule, it did not allow the states the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified states' good neighbor obligations and simultaneously set forth EPA-designed federal implementation plans to implement those obligations at the state level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act.