Court Rejects Bush's Air Pollution Rule
Appellate Judges Side With Utilities, Point To Flaws In New EPA Rules Meant To Strengthen Air Standards
Comments 10WASHINGTON, July 12, 2008

(CBS/ AP) A federal appeals court unanimously struck down a signature component of President Bush's clean air policies Friday, dealing a blow to environmental groups and likely delaying further action until the next administration.

The regulation, known as the Clean Air Interstate Rule, required 28 mostly Eastern states - including Virginia - to reduce smog-forming and soot-producing emissions that can travel long distances in the wind. The Environmental Protection Agency predicted it would prevent about 17,000 premature deaths a year.

North Carolina and some electric power producers opposed aspects of the regulation and President Bush found himself with unusual allies.

"This is the rare case where environmental groups went to court alongside the Bush administration," said Frank O'Donnell, president of Clean Air Watch, a group that has criticized other Bush administration policies.

The U.S. Court of Appeals for the District of Columbia Circuit ruled Friday that the EPA overstepped its authority by instituting the rule. It said the Clean Air Act did not give the EPA the authority to change pollution standards the way it did. Citing "more than several fatal flaws," the court scrapped the entire regulation.

"The Bush administration's environmental agenda has been gravely disappointing and damaging in many ways," John Walke, clean air director for the Natural Resources Defense Council told CBS News. "This was one bright exception. Unfortunately, the court ruling yesterday meant that even this exception did not survive."

The EPA said the rule would dramatically reduce sulfur dioxide and nitrogen oxide emissions, saving up to $100 billion in health benefits. Besides the reduction in premature deaths, the EPA also said the rule would have prevented millions of lost work and school days and tens of thousands of nonfatal heart attacks.

The handful of companies that brought the suit said Friday's ruling caught them by surprise. A spokesman for Duke Energy told CBS News the company had not intended to overturn the Clean Air Interstate Rule, and that the court had thrown the baby out with the bathwater.

While North Carolina Attorney General Roy Cooper said he was glad the court agreed "we need tougher rules to clean up and protect the air we breathe," his spokeswoman, Noelle Talley, said the attorney general's office disagreed that the entire rule needed to be scrapped.

William M. Bumpers, an attorney representing Entergy Corp., said a few electric companies flatly opposed the regulation but most generally favored it because it included cap-and-trade provisions. Such provisions allow companies that exceed emissions caps to buy credits from companies that do not.

"The power-generating industry had already invested billions and billions of dollars in anticipation of the trading market," Bumpers said. "They're not happy with this development."

The EPA said it was reviewing the 60-page opinion and would issue a response later Friday. The Bush administration can appeal the decision but environmental groups called for Congress and the EPA to quickly begin working on a new law or replacement regulation.



Judges Toss EPA Rule To Reduce Smog, Soot
It Was Agency's Most Aggressive Air Measure

By Del Quentin Wilber and Marc Kaufman
Washington Post Staff Writers
Saturday, July 12, 2008; Page A01
A federal appeals court yesterday threw out a major component of the Bush administration's effort to reduce unhealthy levels of soot and smog in Eastern and Midwestern states, a decision that environmental groups worry will delay action on air pollution well into the next administration.

A three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled unanimously that the Environmental Protection Agency overstepped its authority in instituting a rule that would have established a cap-and-trade system for soot and smog.

The court ruling came on the same day that the administration said it would take no steps under the Clean Air Act to regulate greenhouse gas emissions that contribute to global warming, even though the EPA formally announced that it would seek public comment on the issue.

The Clean Air Interstate Rule (CAIR) rejected by the court does not apply to greenhouse gases such as carbon dioxide.

The rule represented the Bush administration's most aggressive action to clean the air over the next two decades. The EPA estimated that the rule would help prevent 17,000 premature deaths and reduce levels of sulfur dioxide and nitrogen oxides by as much as 70 percent by 2025. An unusual alliance of power companies and environmental groups supported the measure.

But the judges found that the EPA had committed "more than several fatal flaws" in creating the measure, which was challenged by several power companies and the state of North Carolina for a variety of contrasting reasons.

"No amount of tinkering with the rule or revising of the explanations will transform CAIR, as written, into an acceptable rule," according to the unanimous 60-page opinion issued by the D.C. Circuit's chief judge, David B. Sentelle, and Judges Judith W. Rogers and Janice Rogers Brown.

EPA Administrator Stephen L. Johnson said in a conference call with reporters that "we are extremely disappointed in the court's decision because it's overturning one of the most protective [air pollution] rules in our nation's history. . . . We'll wait and see what our next steps are."

Environmental groups said the decision will delay efforts to reduce harmful air pollution and will leave tough decisions to be made by the next president and Congress.

"This is probably the biggest air-quality setback ever suffered by the EPA under any administration," said John Walke, clean air director and senior attorney for the National Resources Defense Council, an advocacy group.

Lawmakers who support tougher air pollution standards said the decision should help their efforts to pass legislation.

"Our air isn't getting any healthier as we battle new clean air regulations in the courts and Congress continues to stall in passing strong clean air legislation," Sen. Thomas R. Carper (D-Del.), chairman of the Senate clean air and nuclear safety subcommittee, said in a statement.

Carper has introduced legislation setting limits on soot and smog that would be stricter than those in the Bush rule.

The interstate rule was one of the administration's signature air pollution policies. It would have required 28 states and the District of Columbia to reduce emissions of nitrogen oxides and sulfur dioxide from power plants.

It took a regional approach to the issue and established a cap-and-trade system that would have allowed utilities to sell and buy pollution credits as long as total industry emissions remained below a preset cap.

Environmental groups said the rule would have been particularly helpful in the D.C. region. Much of the area's air pollution on summer days arrives from coal-fired power plants and industry farther west.

While several environmental groups criticized the rule for not setting more aggressive pollution limits, they nevertheless welcomed the measure, saying it was the best they could expect from the administration.

Many power companies also supported the rule because it was not as costly as some proposals pending in Congress. Even North Carolina-based Duke Energy, one of the companies that challenged the measure, said in a statement that it did not intend to have it overturned.

William M. Bumpers, an attorney with Baker Botts LLP, said most of the 20 or so electric companies that his firm represents supported the rule. Some made large investments to upgrade their coal-fired plants, assuming the rule would remain, he said. With the rule vacated, he said, companies will have to rethink their plans.

"This is a train wreck for the EPA, and it's a train wreck for the environment," Bumpers said. "Companies have invested billions of dollars under this rule, and they're not very happy today."

However, not all power companies supported the EPA's action. Several, led by Duke Energy, filed court challenges, arguing that the agency had set pollution limits arbitrarily.

North Carolina attacked the plan from a different angle, saying the program was not tough enough because utilities would be allowed to pollute more by buying credits. Such utilities then would actually be dumping more soot and smog onto North Carolina communities, the state argued.

In agreeing with those arguments, the judges said the EPA's regional cap system "is fundamentally flawed" because it does not take into proper consideration state-specific emissions and needed reductions. It said the agency arbitrarily tied sulfur dioxide emissions to limits passed by Congress in 1990 legislation that addressed acid rain.

And, the judges wrote, the agency improperly set caps on nitrogen oxide by giving states with cleaner plants fewer pollution credits. Though the court said the "EPA's redistributional instinct may be laudatory," the agency doesn't have the authority to force one state to "share the burden of reducing" another's emissions.

"EPA must redo its analysis from the ground up," the judges wrote.

Staff writer Juliet Eilperin contributed to this report.



ブッシュ政権、温室ガス規制命令を拒絶

2008年7月13日0時51分

　【ワシントン＝小村田義之】米環境保護局（ＥＰＡ）は11日、現行の大気浄化法に基づく温室効果ガスの排出規制を命じた米連邦最高裁の判決を拒絶する見解を発表した。規制に伴う経済的な打撃への懸念から、地球温暖化対策に消極的なブッシュ政権の姿勢を鮮明にした。

　昨年４月の最高裁判決では温室効果ガスを「大気汚染物質」と認定。ＥＰＡが大気浄化法に基づいて排出を規制する権限があると判断した。

　これに対し、この日の見解では、地域的な汚染対策を本来の目的とする大気浄化法による温室効果ガスの規制は、ＥＰＡの前例のない権限拡大を招き、経済に悪影響を与えかねない、としている。

　ホワイトハウスも同日、この見解を支持する声明を発表。ブッシュ大統領が「大気浄化法で気候変動に対処するのは誤りだ」と今年４月に述べたと紹介し、新技術への投資や原発の重要性を強調した。洞爺湖サミットを受けて「Ｇ８で合意したように、米国は主要な経済大国と協力して行動をとる」としている。

　米メディアによると、ＥＰＡは当初、規制に前向きな内容を見解に盛り込んでいたが、産業界への悪影響を懸念するホワイトハウスなどの圧力で方針転換したという。

　これにより、来年１月20日までの現政権の任期中は、現行の大気浄化法による温室効果ガスの規制が見送られたことになる。ホワイトハウスは連邦議会に対して新規立法を求めているが、最有力だった「米気候安全保障法案」（リーバーマン・ウォーナー法案）は６月に事実上、廃案となっている。