Fix to Clean Air Interstate Rule Becomes Priority for Next Congress

November 9, 2008
by MEREDITH DuBARRY HUSTON
Client Alert Newsletter November 2008

On September 24, 2008, the U.S. Environmental Protection Agency ("EPA") requested reconsideration of a July 11 decision by the Court of Appeals for the District of Columbia Circuit vacating the Clean Air Interstate Rule ("CAIR"). As promulgated, CAIR would have used a trading scheme to curb emissions of fine particles and ozone precursors from power plants in upwind states to help downwind states attain national air quality standards. Under CAIR, nitrogen oxide reductions were scheduled to begin in 2009, with sulfur dioxide reductions to follow in 2010; further reductions for each were slated for 2015.

As the D.C. Circuit contemplates whether or not to stay its mandate until EPA promulgates a replacement rule, Congress is considering whether or not to take its own action to allow CAIR implementation to move forward, including possible legislation codifying the first phase of CAIR emissions reductions as an interim measure for an unspecified period of time.

In the absence of judicial or legislative action implementing the emissions reductions mandated by CAIR, power plants in upwind states could be required to take steps individually to control their emissions—a potentially expensive proposition—if downwind states file petitions under Section 126 of the Clean Air Act. Section 126 allows states and other stakeholders affected by migrating pollution to file a petition with EPA if they believe pollutants from upwind states will prevent them from achieving air quality standards.