- The Washington Times - Tuesday, August 21, 2012

A federal appeals court dealt a major blow to environmentalists and a significant setback to the Obama administration’s clear-air agenda Tuesday by striking down a key Environmental Protection Agency rule limiting power-plant emissions.

The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 that the agency’s Cross-State Air Pollution Rule, meant to curb harmful pollutants from drifting downwind and harming the air quality in neighboring states, went too far and exceeded the EPA’s “statutory authority.”

In its ruling, the majority wrote that it was not passing wisdom or judgment on the merits of the EPA’s rule, but it made clear that it must stay within the scope of the power that Congress gave the agency.

“Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here,” reads a portion of the majority opinion.

Finalized last summer, the regulation was meant to dramatically reduce emissions, such as sulfur dioxide and nitrogen oxide, that travel from power plants in one state and contaminate the air of another, risking cases of bronchitis, asthma and other health issues, the EPA argued.

It is estimated that by 2014, the rule, along with related EPA actions, would have reduced sulfur dioxide emissions by 73 percent and nitrogen oxide levels by about 54 percent.

The rule applied to all power plants in 27 states, stretching from the Deep South through New York and encompassing parts of Nebraska, Kansas, Missouri and other Midwestern states.

While all plants were subject to the act, the practical effect was another burden for coal-fired facilities, which generate more than 40 percent of the nation’s electricity.

The EPA estimated that it would cost power plant operators and other parties at least $800 million each year to comply with the regulation, though it also argued that those expenses would be justified by up to $280 billion in “annual health benefits.”

Total U.S. health care expenditures are estimated to reach $3 trillion in 2014, the year in which the EPA said the rule could save as much as one-tenth of U.S. costs.

The agency said Tuesday that it would review the ruling and determine “the appropriate course of action.”

Environmentalists pounced on the court’s decision, arguing that it would lead to degraded air quality and thousands of deaths.

Mary Anne Hitt, director of the Sierra Club’s Beyond Coal campaign, said the ruling puts at risk “safe, breathable air for our children” and that the EPA measure would have prevented as many as 34,000 premature deaths.

“EPA can and must seek a rehearing of this critical life-saving rule,” she said.

Congressional Democrats, including Sen. Robert Menendez of New Jersey, said the court has rendered useless clean-energy efforts in the Garden State and elsewhere.

“New Jersey has spent billions of dollars to make its power sector among the cleanest in the country, while some upwind states have allowed old, dirty coal plants to foul New Jersey’s air for decades,” he said in a joint statement with fellow Sen. Frank R. Lautenberg, a fellow New Jersey Democrat.

Republicans in Congress and in affected states, along with many in the energy sector, applauded the ruling and its economic impact while bashing the EPA for leading the charge in what some Obama critics have dubbed “the war on fossil fuels.”

“This fits in with the larger pattern of EPA pushing the law to the outer limits, breaking the law and crushing our economy,” said Virginia Attorney General Kenneth T. Cuccinelli II. “We are pleased and gratified to see another example of EPA’s egregious regulatory overreach has been stopped before it could do more harm.”

Mr. Cuccinelli echoed the thoughts of many other Republicans and energy industry analysts, who say EPA actions, such as the Cross State rule, could force coal plants to close rather than pay the millions of dollars necessary to comply with Obama administration guidelines.

“When the EPA takes liberties with its legal authority, the result is higher prices for consumers, businesses, schools and hospitals,” the Electric Reliability Coordinating Council, which represents utilities and energy companies, said in a statement. “At a time of economic recession, the country cannot afford sloppy rule making of this sort.”

• Ben Wolfgang can be reached at bwolfgang@washingtontimes.com.

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