Five states last week filed a petition for review with the U.S. Court of Appeals for the D.C. Circuit seeking review of EPA’s Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR). The CSAPR sets new nitrogen oxide (NOx) emission budgets for the summertime (May–September) ozone season and applies to power plants in 22 eastern states. While the petition does not go into specifics of the challenge, the five state petitioners—Wisconsin, Alabama, Arkansas, Ohio, and Wyoming—ask the court to set aside the final rule on grounds that it exceeds EPA’s statutory authority and is otherwise arbitrary and capricious.
The petition for review kicks off another round of litigation against EPA related to EPA’s attempts to exercise its authority under the “good neighbor” provision of the Clear Air Act (42 U.S.C. § 7410(a)(2)(D)(i)(I)). As previously reported, EPA’s Clean Air Interstate Rule, the predecessor to CSAPR, was overturned by the D.C. Circuit in 2008. North Carolina v. EPA, 531 F.3d 896, on reh’g, 550 F.3d 1176 (D.C. Cir. 2008). On remand to the agency, EPA issued its first iteration of the CSAPR, which set annual NOx and sulfur dioxide (SO2) emissions budgets for 28 upwind states to address interstate transport of ozone pollution under the 1997 Ozone National Ambient Air Quality Standards (NAAQS) and of fine particulate matter (PM2.5) pollution under the 1997 and 2006 PM2.5 NAAQS. That rule was upheld by the Supreme Court in EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). The states’ petition, while the first, may not be the last—the deadline to file petitions for review of the rule is December 26, 2016.