A number of states, industry groups, companies and environmental groups have filed petitions for review with the D.C. Circuit challenging EPA’s final Cross State Air Pollution Update Rule. The petitions assert that EPA exceeded its statutory authority and that the rule is arbitrary and capricious.
The final rule, which was published October 26, 2016, establishes Federal Implementation Plans regulating NOx emissions from electric generating units (EGUs) in twenty-two states that EPA deems to “contribute significantly” to ozone nonattainment and maintenance problems in downwind states. Under the rule, the Agency amends the current CSAPR ozone season NOx program and requires EGUs to make further emission reductions beginning May 1, 2017. In the final rule, EPA also finds that some states previously subject to the CSAPR program no longer significantly contribute to downwind ozone problems and removes those states and their affected EGUs from the program altogether, including North Carolina, South Carolina, and Florida. While a few states were removed, EPA added the State of Kansas, which was not previously subject to the CSAPR ozone season program.
In addition to the petitions for review in the D.C. Circuit, some parties have also filed petitions for administrative reconsideration with EPA. The petitions for reconsideration raise numerous issues, including changes in EPA’s methodology for establishing the new, more stringent state emissions budgets, EPA’s failure to provide the public an opportunity to review and comment on the new methodology, and the compliance deadline, which is now less than six months away.
For more information on the Cross State Air Pollution Rule and the latest legal challenge, please contact Margaret Campbell, Buck Dixon, or Rich Pepper.