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

ELR Citation: 45 ELR 20142
Nos. 11-1302, (D.C. Cir., 07/28/2015)

The D.C. Circuit, on remand from the U.S. Supreme Court, invalidated EPA's 2014 emissions budgets under the transport rule, also known as the Cross-State Air Pollution Rule, as applied to various states. 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. The transport rule sets sulfur dioxide (SO2) and nitrogen oxides (NOx) emissions limits for 28 upwind states based on those states' contributions to downwind states' air quality problems. Under the rule, upwind states may be required to reduce emissions by more than their own significant contributions to a downwind state's nonattainment. Initially, the D.C. Circuit vacated the rule, but the Supreme Court reversed and remanded. In so doing, however, the Court stated that the rule may be contested through particularized, as-applied challenges, noting that EPA may not require "an upwind State to reduce emissions by more than the amount necessary to achieve attainment in every downwind State to which it is linked." Here, petitioners challenge the 2014 SO2 emissions budgets and the 2014 ozone-season NOX emissions budgets for various states, arguing that the emissions budgets require the states to reduce pollutants beyond the point necessary to achieve downwind attainment. The appellate court agreed. The petitioners demonstrated that a downwind location would still attain its NAAQS if linked upwind states were subject to less stringent emissions limits. As such, EPA overstepped its authority, and the court invalidated the rule without vacatur. On remand, EPA must reconsider the 2014 emissions budgets at issue. But the court rejected petitioners' remaining challenges to the transport rule, including all of their facial challenges.