Cross-State Air Pollution Rule Overturned but a Bright Spot Remains

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    While the Cross-State Air Pollution Rule (CSAPR) overruling by the U.S. Court of Appeals for the District of Columbia Circuit appeared to be another loss for a healthier America, some within the environmental community view the ruling as a route to an even more aggressive cross-state clean air process.

    While the court of appeals threw out the Environmental Protection Agency’s (EPA) cross-state air pollution rule, it also affirmed the validity of Section 126 of CSAPR, “which explicitly grants states the authority to petition EPA to force upwind states to reduce emissions.”  

    While the effectiveness of Section 126 has varied, it has worked for some “downwind” states in the past.

    In a different vein, some commentators have questioned why such a seemingly straightforward and important rule like CSAPR could be overturned in the first place.  

    The Clean Air Act, which provided CSAPR its legal rationale, is unambiguous about the EPA’s duties towards protecting and enhancing America’s air quality and stratospheric ozone layer.   This would have clearly occurred had CSAPR withstood legal challenges.  

    So was the court of appeals playing the role of “judicial activist” in its decision to overturn CSAPR?

    One further bright side of the court’s decision, if Section 126 is used effectively by the states, is the political pressure that stands to be taken off of the EPA for enforcing clean air rules. If the states are the entities requesting EPA assistance, then at least in theory the EPA can shield itself from the most potent “Big Brother” accusations that conservatives would undoubtedly throw at the agency.

    Ultimately, though, the issue is about protecting America’s air quality and the health of all living organisms inside our borders. The EPA cannot do this if every meaningful attempt to regulate harmful air emissions is struck down by the courts for reasons that escape logic.

    Real people are suffering from harmful air emissions and even Big Business, with all of its influence, can’t hide this fact. That’s why Big Business is fighting a losing battle, much like Big Tobacco did for many decades. The effects from harmful air emissions are clear and cannot be buried with political favors or avoided with selective amnesia.    

    • I think we all remember how many right-wing judges “struck down” the Affordable Care Act, but it lives on …