It happened again. On August 21, legislation put into play by the Environmental Protection Agency was cut off at the knees.
In an ongoing chess match, a panel of judges from the United States Court of Appeals for the District of Columbia rescinded the Cross-State Air Pollution Rule (CSAPR), an upgrade of the 2005 Clean Air Interstate Rule (CAIR).
It is difficult to explain why an initiative that would benefit the standard of health for 240 million people, and annually reduce approximately $280 billion in health care costs and related expenditures, got the heave-ho. The EPA had estimated that by 2014, sulfur dioxide emissions would be reduced by 73 percent and between 13,000 and 34,000 lives per year would be saved.
To grasp the situation, a bit of backstory is in order…
In 1997, the EPA established new laws to regulate particulate matter. Yet one of the nagging problems was that an individual state could be doing a good job, while one of their neighbors wasn’t. As a result, pollution would end up traveling by wind from the offending site of origin to other localities.
For that reason, the concept evolved that all states would work together to cut down on pollution. A number of companies stepped up to the challenge by investing in available technology, such as scrubbers for coal-fired power facilities, with the goal of meeting determined requirements. CSAPR would have forced 28 states to clean up the pollution that emanated from their power plants and then drifted to other states.
So who challenged this? A coterie of industry and coal interests (such as the National Mining Association, AEP and the Southern Company)—as well as the attorneys general from states including Texas, Mississippi, Florida and Kansas. As a result, the EPA was told to go back and reformulate their proposal. The decision maintained that the EPA had the right to establish guidelines that would call on upwind states “to bear responsibility for their fair share of the mess in downwind states,” but it asserted that the EPA had gone beyond its authority under the Clean Air Act. Ironically, the new guidelines had been a move to improve the 2005 guidelines deemed “insufficient” by a Federal court.
In the 2-to-1 decision, it should be noted that the two judges who moved to act against CSAPR were appointees of President George W. Bush. The dissenting opinion came from Clinton appointee, Judge Judith Rogers. Her response delineated the majority’s conclusions as “unsupported by a factual record, and a trampling on this court’s precedent.”
The next move belongs to the EPA. For now, the original 2005 rule will stand. Environmental advocates are waiting to see if the EPA will repeal the decision. Regardless, the effort to reconstruct the guidelines will come under the jurisdiction of the winner of the 2012 election.
Editorial boards around the country from New Hampshire to Los Angeles weighed in on the court’s ruling, and the reaction wasn’t positive. The New York Times titled their response, “Another Rebuff for Cleaner Air.”
Clearly, differing viewpoints are the result of dissimilar ideology. Rep. Fred Upton (R-MI.), Chairman of the House Energy and Commerce Committee, released a statement saying, “This is a win for American families, who, because of this rule, faced the threat of higher power bills, less reliable electricity and job losses.”
Sen. Tom Carper (D-DE.), Chairman of the Senate Subcommittee on Clean Air and Nuclear Safety, didn’t see it the same way. His press announcement made clear that he was “disappointed by the court’s decision.” I contacted Sen. Carper to find out more about how Delaware would be impacted. He responded by e-mail saying,
“The court’s decision to vacate the Cross-State Air Pollution rule has far-reaching implications for the health of our children, friends, and neighbors. I call this rule the ‘Good Neighbor’ rule for a reason: because it helps ensure that states upwind do their part to clean up and protect the air we breathe in downwind states. Without this rule, downwind states may be forced to go it alone with cleaning up the dirty air that contributes to respiratory ailments like asthma. I’m very disappointed in this court decision, and I will continue working to ensure we find a swift solution to ensure that all states—not just downwind ones like Delaware—do their fair share to clean up dirty air and protect our children and families from its harmful health effects.”
Unfortunately, our children will continue to be pawns in this deadly game, while they wait to see who will get to checkmate first.