US court gives surprise backing to clean-air rule

CAIR imposes strict limits on certain gasses across the eastern US

In a surprise last-minute move, the DC Court of Appeals has reinstated a clean-air rule that will curb emissions from power plants in the Eastern US. The Court reversed a decision to vacate the EPA's Clean Air Interstate Rule (CAIR), which cuts sulphur dioxide and nitrogen oxide emissions that travel across state boundaries.

The DC Circuit had previously vacated the rule on the basis of multiple flaws, including "regionwide caps with no state-specific quantitative contribution determinations or emissions requirements," according to its initial ruling. "EPA must redo its analysis from the ground up," it had said.

However, the court temporarily reinstated the act on the grounds of environmental necessity. "Allowing CAIR to remain in effect until it is replaced by a rule consistent with our opinion would at least temporarily preserve the environmental values covered by CAIR," it said in a ruling this week. The hearing came in the nick of time for the EPA, as the rule is scheduled to come into effect on 1 January.

Written after the introduction of the Clear Skies Act, CAIR imposes permanent limits on emissions of the two gases in the 28 relatively industrialised eastern states and the District of Columbia. It ultimately calls for SO2 reductions of 73 per cent, and NOx emissions of over 61 per cent from 2003 levels by 2015, although pressure to replace the rule will likely limit the CAIR reductions to the initial 45 per cent and 53 per cent respectively.

Although the court has not set a deadline for the replacement of the rule, experts said that the EPA would be under considerable pressure to arrive at an alternative.

"It would be a mistake to construe the court’s decision as a blank cheque for the EPA to drag its feet in responding. While it declined today on a schedule to take effective action, given how important the rule is for this country, the EPA will be under pressure from all stakeholders," said Vickie Patton, deputy general counsel at the Environmental Defense Fund.

EPA officials privately admitted being caught off-guard by the decision. " The Agency will work closely with states and emissions sources covered by the rule to ensure that CAIR is implemented in accordance with this action," it said in an official statement. "EPA is, however, disappointed that the court rejected our petition for rehearing by the full court. We are evaluating the impact of this decision and considering future options."