DC Circuit Stays Cross-State Air Pollution Rule

With less than 48 hours remaining before the EPA Rule would take effect, the DC Circuit in EME Homer City Generation L.P..v. EPA No. 11-1302 (Dec. 30, 2011), granted a stay of CSAPR and required that EPA continue administering the current Clean Air Interstate Rule. Also, the Court of Appeals' per curiam opinion ordered expedites review of CSAPR, which was to have gone in effect on January 1, 2012.

This Order has implications for the electric power industry and states concerned about meeting CSAPR's requirements by 2012. By way of background, CSAPR is intended to address interstate air pollution, which impairs certain "downwind" states' ability to attain National Ambient Air Quality Standards for ozone and fine particulate matter. The CSPAR establishes emission allowance budgets for sulfur dioxide and nitrogen oxides for 28 eastern states, and requires power plants in those states to hold allowances to cover their emissions. According to EPA, CSPAPR will cost $2.4 billion/year in compliance costs by 2014.

The Court of Appeals has schedule oral argument for April. With that schedule, a decision may be issued as early as this Summer.