EME Homer City Generation, L.P v. U.S. EPA. Country/Territory United States of America Type of court National - higher court Date Aug 21, 2012 Source UNEP, InforMEA Court name United States Court of Appeals, District of Columbia Judge Rogers, Griffith and Kavanaugh. Reference number No. 11-1302 Language English Subject Air & atmosphere, Environment gen., Legal questions Keyword Air quality/air pollution Jurisdictional competence Abstract In August 2011, to implement the statutory good neighbor requirement, EPA promulgated the rule at issue in this case, the Transport Rule, also known as the Cross-State Air Pollution Rule. The Transport Rule defines emissions reduction responsibilities for 28 upwind States based on those States' contributions to downwind States' air quality problems. The Rule limits emissions from upwind States' coal- and natural gas-fired power plants, among other sources. Those power plants generate the majority of electricity used in the United States, but they also emit pollutants that affect air quality. The Transport Rule targets two of thosepollutants, sulfur dioxide (SO2) and nitrogen oxides (NOx). In this decision, dealing with U.S. EPA's controversial Cross State Air Pollution Rule (CSAPR) the Appeals Court indicates that some emissions of air pollutants affect air quality in the States where the pollutants are emitted. Some emissions of air pollutants travel across State boundaries and affect air quality in downwind States. In its conclusion, the majority Appeals Court rules, "We vacate the Transport Rule and the Transport Rule FIPs and remand this proceeding to EPA. EPA must continue administering CAIR [Clean Air Interstate Rule, the Transport Rule] pending the promulgation of a valid replacement." The Appeals Court explains that to deal with that complex regulatory challenge, Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders. The Appeals Court majority rules, "Here, EPA's Transport Rule exceeds the agency's statutory authority in two independent respects. First, the statutory text grants EPA authority to require upwind States to reduce only their own significant contributions to a downwind State's nonattainment. But under the Transport Rule, upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State's nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA's Transport Rule violates the statute. Second, the Clean Air Act affords States the initial opportunity to implement reductions required by EPA under the good neighbor provision. But here, when EPA quantified States' good neighbor obligations, it did not allow the States the initial opportunity to implement the required reductions with respect to sources within their borders. Instead, EPA quantified States' good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act. For each of those two independent reasons, EPA's Transport Rule violates federal law. Therefore, the Rule must be vacated." Full text COU-159740.pdf