Cross-State Air Pollution Rule (CSAPR)- Where do we stand?

Air pollution has a nasty habit of not respecting state lines.  Given that winds blow primarily from west to east in the United States, much of the pollution from the MidWest and the Great Plains ends up having an impact upon the East Coast.  The Clean Air Act was drafted with this in mind and contains the “good neighbor” provision in Section 110.  CAA Section 110(a)(2)(D)(i)(I) states that a state implementation plan (SIP) must:

“contain adequate provisions… prohibiting… any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will… contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard”

Needless to say, this creates a hotly contested issue where MidWest and Great Plains states and their respective economies are potentially put at risk for the benefits of people located on the East Coast.  As a result, any effort by US EPA to implement the good neighbor provision by proposing interstate transport regulations elicits significant commentary and inevitably litigation.  Over the course of a single year, August 2010 until August 2011, US EPA proposed and finalized the Cross-State Air Pollution Rule to replace the previous Clean Air Interstate Rule (CAIR) which had been remanded from the D.C. Circuit to EPA for revision.  CSAPR was immediate contested in court for a variety of reasons that will be discussed in this blog later this month.  On December 30, 2011, the D.C. Circuit stayed CSAPS pending judicial review.

The stay was not a judgment on the merits, instead the stay temporarily halted the implementation of CSAPR and reinstated CAIR until the court had the opportunity to review whether the administrative process for noticing CSAPR as well as the actual substance of CSAPR is valid.  On January 18, 2012, the D.C. Circuit issued a briefing schedule for the matter, setting dates for all briefs to be submitted by the parties while stating that oral arguements will be scheduled at a later date.  The final briefs for both parties were due March 16, 2012.

If you have any questions regarding CSAPR, CAIR, or interstate air pollution, contact us at 773-609-5320, info@thornenvironmentallaw.com, or through our web contact form.

Disclaimer: This article cannot, and does not, create any attorney/client or consultant/client relationship.