The D.C. Circuit Vacates The Cross-State Air Pollution Rule

EME Homer City Generation, L.P., v. EPA, et al., No. 11-1302 (D.C. Cir. Aug. 21, 2012)

In a sure to be controversial 2-1 decision, complete with a blistering 44-page dissent, the D.C. Circuit vacated EPA's Cross-State Air Pollution Rule, alternately known as the Transport Rule ("CSAPR" or the "Rule"). CSAPR established a multi-state market-based NOx and SOx emissions reduction program for the power industry under the Clean Air Act's ("Act") "good neighbor" provision, and was intended to replace the similar NOx and SOx emissions reduction program established under the Clean Air Interstate Rule ("CAIR"). The Court's decision struck down the methodology EPA used in CSAPR to set state emissions budgets for NOx and SOx. In turn, the court provided its own detailed interpretation of how EPA must set emissions budgets under the Act's good neighbor provision, which, while strict, would be otherwise unremarkable if this were the first rule where EPA employed the now vacated