U.S. Court of Appeals for the D.C. Circuit Upholds Strengthened Cross-State Air Pollution Rule

(Washington, D.C. – September 13, 2019) The U.S. Court of Appeals today ruled in favor of an updated and strengthened version of the Cross-State Air Pollution Rule – the landmark emission standards under the Clean Air Act’s “Good Neighbor” safeguards that are designed to protect downwind states from coal plant air pollution that blows across their borders.

“Today’s court decision will help millions of Americans have healthier, safer air to breathe,” said Graham McCahan, senior attorney for Environmental Defense Fund, which is a party to the case. “The Cross-State Air Pollution Rule is a common sense safeguard that provides vital clean air protections for the downwind states that suffer because of their neighbors’ smokestack pollution.”

The Cross-State Air Pollution Rule was created under the “Good Neighbor” provision of the Clean Air Act. It reduces sulfur dioxide and oxides of nitrogen pollution emitted from coal-fired power plants across the Eastern U.S. That pollution, and the resulting soot and smog, drift across state borders and contribute to dangerous, sometimes lethal, levels of pollution in 22 downwind states. The original Cross-State Air Pollution Rule was upheld by the Supreme Court in 2014.

In 2016, the U.S. Environmental Protection Agency finalized an update to the rule to help states meet our nation’s 2008 health-based smog standard. EPA estimates the updated rule will prevent more than 67,000 asthma attacks each year, and will provide American families with $13 in health benefits for every dollar invested.

Coal companies, coal-based power companies, and seven states and cities sued EPA over the updated rule. A broad coalition went to court to defend it, including six states, EDF, the American Lung Association, the Appalachian Mountain Club, and Sierra Club.

Even the Trump administration EPA supported the Cross-State Air Pollution Rule in this case – especially remarkable since they have opposed using the “Good Neighbor” provision in similar circumstances. Trump’s EPA denied requests from Maryland and Delaware for help with dangerous border-crossing pollution. Both states have gone to court over those decisions. (EDF is a party to the lawsuit in support of the states.) Trump’s EPA has also proposed denying a request for help from the state of New York – their final decision is expected later today.

In today’s decision about the Cross-State Air Pollution Rule, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit rejected what it called “a smörgåsbord of arguments” from upwind states and companies seeking to overturn the rule. The court denied all claims that the rule is too protective, finding instead that the rule properly implements EPA’s statutory obligation to protect the residents of downwind states from interstate pollution that harms public health and the environment.

The court also ruled that, in one respect, the Cross-State Air Pollution Rule needs to be strengthened. The judges agreed that the rule does not adequately conform to the Clean Air Act deadlines by which downwind states harmed by interstate pollution must meet health-based Clean Air Act air quality standards. The court remanded the rule to EPA to take corrective action on that point, while leaving the rule in place so as not to compromise its significant health benefits.

You can read more about the Cross-State Air Pollution Rule on EDF’s website.