Trump’s lawyers head to court to defend Obama EPA rule

Source: Sean Reilly, E&E News reporter • Posted: Wednesday, October 3, 2018

The Trump administration has found at least one major Obama-era environmental regulation it can embrace: a 2016 rule to curb air pollution drifting across state lines.

Tomorrow, administration attorneys will head to court to defend that regulation during a marathon round of oral arguments before the U.S. Court of Appeals for the District of Columbia Circuit.

The administration is backing EPA’s 2016 Cross-State Air Pollution Rule update, which is intended to cut coal-fired power plant emissions that contribute to downwind ozone problems, against a battery of claims from states, as well as industry and environmental groups.

The regulation is EPA’s latest attempt to address what its lawyers label “the difficult problem of state-to-state-transported air pollution.” While the Supreme Court in 2014 had affirmed EPA’s basic approach to interpreting the Clean Air Act’s “good neighbor” provision, the latest round of litigation revolves around how far the agency can legally go in enforcing it.

The update is “a step in the right direction, but really it’s just a baby step,” said Neil Gormley, an Earthjustice attorney representing environmental groups who say EPA should have done more to curb releases of nitrogen oxides (NOx) that make it harder for downwind states to meet the 2008 ground-level ozone standard of 75 parts per billion. By contrast, power producers and upwind states like Wisconsin contend that the agency again went overboard in setting state-by-state caps on NOx emissions.

EPA says it got the balance just right. The rule, typically known as the CSAPR update, therefore “should be upheld,” agency attorneys said in one court filing.

Hearing the arguments — scheduled to last more than two hours — will be a three-judge panel made up of Obama appointees to the appellate bench: Sri Srinivasan, Patricia Millett and Robert Wilkins. The session is likely to be densely technical, with time set aside for discussion of issues like “banked allowances” and biogenic sources of pollutants.

Ozone, a lung irritant that is the main ingredient in summertime smog, is formed by the reaction of NOx and volatile organic compounds in sunlight. EPA had issued the original Cross-State Air Pollution Rule in 2011. The update, published two years ago, applies to 22 states, ranging from New York to as far west as Texas. The update came after the D.C. Circuit ordered the agency to reconsider the original NOx budgets for some states on the grounds that they were unnecessarily strict.

As E&E News reported at the time, the Obama EPA yielded ground in the final update rule, allowing power plants in the affected states to release about 16,000 more tons of summertime NOx last year than originally proposed (Greenwire, Sept 8, 2016). Even so, the agency later concluded that the new requirements led to a 21 percent drop in releases in 2017 (E&E News PM, Nov. 15, 2017).

But while the Trump administration is seeking to replace or amend Obama-era air rules ranging from the Clean Power Plan to regulations on brick kilns, EPA has proposed using the CSAPR update as its sole vehicle for satisfying “good neighbor” obligations needed to meet the 2008 ozone standard (E&E News PM, June 29).

That stance would appear to put the administration at odds with Bob Murray, head of the Ohio-based coal giant Murray Energy Corp. Murray, a close ally of President Trump, had included the CSAPR update last year on a wish list of rules that he wanted suspended (Greenwire, June 6).

Northeastern state regulators, however, say the update’s requirements don’t afford enough protection from upwind NOx, which is pushing them out of attainment with the 75 ppb ozone limit.

“EPA should not rely upon this as a full remedy,” Maryland Environment Secretary Ben Grumbles said at an August public hearing on the proposed determination.

EPA signed off the proposal in June; under a federal court order, the agency must make the final determination by early December.