The Cross-State Air Pollution Rule And EPA’s Rush To Regulate

Vol. 43 No. 3

Margaret Campbell and Byron Kirkpatrick are with the Environmental and Natural Resources Practice Group at Troutman Sanders LLP. Ms. Campbell is co-chair of the Practice Group.

Over the last three years, the U.S. Environmental Protection Agency (EPA) has moved quickly on several fronts to set a new course on Clean Air Act (CAA) regulation. From promulgation of the first ever greenhouse gas emission regulations to new ambient air quality standards to unprecedented regulation of fossil-fuel fired utilities and industrial boilers, the Obama administration has undertaken a complete makeover of the federal clean air program. EPA’s recently issued Cross-State Air Pollution Rule, addressing interstate transport of certain air emissions in the eastern United States, is one example of the push to expedite this new air quality vision. It also illustrates EPA’s willingness to test the limits of its authority under the CAA. While the new rule applies exclusively to fossil-fuel power plants, according to EPA, the rule will establish the methodology for future interstate transport rules, which will likely apply to industrial facilities as well. The new rule is the subject of over fifty petitions for administrative reconsideration, forty-five petitions for judicial review, and eighteen motions asking the court to stay the rule pending review. The challenges call into question both the process and substance of the final rule.

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