White House urges court to reconsider cross-state pollution rule

The Obama administration today asked a federal appeals court to reconsider its decision to throw out a rule aimed at regulating harmful air emissions that cross state lines.

The move was not unexpected. In August, a three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit was divided 2-1 over whether the Cross State Air Pollution Rule -- known as CSAPR -- passed legal muster (Greenwire, Aug. 21).

The court left in place the Clean Air Interstate Rule, which the same court ruled in 2008 doesn't do enough to protect public health.

The Justice Department today filed a petition asking the court's eight active judges to rehear the case, a process known as rehearing en banc. The court rarely rehears cases, but it is more likely to do so when there was a judge who dissented from the panel decision. EPA needs five of the eight judges to agree to rehearing for it to happen.

In the majority opinion, Judge Brett Kavanaugh said CSAPR couldn't stand because EPA had overstepped its authority by requiring larger reductions in emissions than were allowed under the Clean Air Act, which calls for states to halt emissions that "contribute significantly" to the ability of other states to be in compliance with air quality standards. He said EPA could require states to reduce emissions only by the amount that caused the neighboring state to be out of compliance.

The court also held that EPA did not have authority to issue federal implementation plans, or FIPs, without first allowing states to develop their own plans.

In dissent, Judge Judith Rogers accused the majority of "trampling" on the court's Clean Air Act jurisprudence.

In today's petition, Justice Department lawyers seized on Rogers' words.

On the FIP issue, the government maintains the court shouldn't have answered that question because it wasn't properly before the court. The various challengers -- states and industry groups -- should have challenged the FIP-related decisions at an earlier stage, the Justice Department lawyers wrote.

As for EPA's authority over the extent to which it could order reductions, the administration says the court had adopted its own interpretation of an ambiguous phrase in the statute, "thereby effectively dictating its own policy approach."

The ruling "upends the appropriate relationship of the judicial, legislative, and executive branches of government by rewriting clear legislation, ignoring explicit statutory jurisdictional limits, and stepping into the realm of matters reserved by Congress and the courts to the technical expertise of administrative agencies," the DOJ lawyers wrote.

Environmental lawyers welcomed the move.

Sean Donahue, who represents the Environmental Defense Fund, said the petition's arguments are "anchored in the plain terms of the statute, the court's own case law and the imperative to enforce the 'good neighbor' protections under the nation's clean air laws."

Rogers' dissenting opinion made it clear the majority "ran roughshod over basic jurisdictional requirements and left millions of Americans unprotected from harmful upwind air pollution," he added.

On the industry side, Jeff Holmstead, a partner at Bracewell & Giuliani, suggested EPA's "chances of winning are very slim" but said the agency had to seek further review because "they would look pretty weak if they just accepted defeat."