- The Washington Times - Tuesday, July 28, 2015

President Obama’s environmental agenda suffered another loss in court Tuesday when a federal appeals panel ordered the administration to rewrite rules limiting cross-state pollution.

In its ruling, the U.S. Court of Appeals for the District of Columbia affirmed the Environmental Protection Agency’s Cross-State Air Pollution Rule, meant to stop upwind states from producing pollution that drifts into neighboring states and pushes them out of compliance with federal standards. But while the court upheld the plan itself, the judges said the EPA’s limits on 13 states, mostly in the South and Midwest, were far too strict and must be redone.

The ruling comes a month after the Supreme Court struck down the EPA’s mercury and air toxics standards, meant to limit pollution from power plants. The court found that the agency failed to consider the massive costs associated with complying with the rule.

Opponents of the administration also have vowed to file new legal challenges to the EPA’s Clean Power Plan, which would establish unprecedented limits on carbon emissions from existing power plants, after the final version of the proposal is released next month.

In the cross-state case, the judges said the EPA’s mandate went beyond what was necessary to ensure states didn’t flood their neighbors with pollution, essentially finding that the administration had overstepped its bounds.

“The rule could lead to over-control of upwind states — that is, emissions reductions beyond those necessary to achieve attainment in downwind states,” Judge Brett Kavanaugh wrote. “Second, the rule could require states to reduce even insignificant contributions to pollution in downwind states. Third, the rule did not purport to try to assess each upwind state’s relative contribution to nonattainment in downwind states.”

The rule itself already has been upheld by the Supreme Court, which last year said the EPA was within its rights to regulate cross-state pollution but sent questions about the specific limits back to the D.C. Circuit.

For states that have spent years battling Mr. Obama’s environmental agenda in court, Tuesday’s ruling represented a key victory.

“In Texas we create air quality improvements through science and facts. The EPA’s agenda-driven mandates would have increased energy costs for hard-working Texans and decreased reliability. I’m pleased the court has sent the EPA marching back to the drawing board,” Texas Attorney General Ken Paxton said in a statement. “We will continue to fight the EPA’s overreach while ensuring Texas can keep our air clean without wreaking havoc on family budgets.”

The administration highlighted the fact that the underlying rule remains in place and said it will review the specifics of the decision.

“We are reviewing the decision and will determine any appropriate further course of action once our view is complete,” EPA spokeswoman Melissa Harrison said.

Environmentalists said that any lessening of the standards would make them nearly useless.

“The reality is we need more pollution control of power plants, not less,” said Frank O’Donnell, president of Clean Air Watch. “The targets involved in this case are so outmoded that they are almost irrelevant.”

The states affected by Tuesday’s decision are: Texas, South Carolina, Florida, Maryland, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Texas, Virginia and West Virginia.

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