A three-judge panel has voted two to one to strike down a new rule from the Environmental Protection Agency that would require some states to reduce pollution that travels across state lines. This puts the EPA in a difficult position.
The Cross-State Air Pollution Rule would require twenty-eight states—including Kentucky and all of its neighbors—to cut back on ozone-forming emissions and in some cases, fine particle pollution. The EPA created the rule in response to a 2008 court decision that vacated its predecessor—a rule put into place by George W. Bush’s administration that the court deemed wasn’t stringent enough.
So, with the court’s split decision to overturn the new, stricter rule, the EPA is caught in the middle. John Walke is the director of the Natural Resources Defense Council’s Clean Air Program.
“The problem is that in the middle of this fairy tale about Goldilocks and the Three Bears where EPA is being told, this is too hot and this is too cold, we don’t know yet what judges consider to be just right,” he said.
With this new decision, Walke says the EPA is still lacking clear guidance on how the agency is supposed to protect the public from air pollution—which it’s required to do.
Environmental groups argued that the new rule would save tens of thousands of lives a year. Utilities say the pollution controls needed to comply would have been costly.
Louisville Gas and Electric has already gotten necessary approval to make upgrades to plants to comply with the law. A spokeswoman says the company is still assessing the decision, but the initial thoughts are the court ruling will have a minimal effect on plans.
The EPA can appeal the decision, and send it back to court. If the agency has to start over with the rulemaking, it could take another four years before stricter regulations are in place. Until then, some provisions of the Bush-era rule will remain in place.
How the votes played out:
You can read the court’s decision here. There were three judges voting—two voted to strike down the rule, and one dissented.
Voting against the rule were Judge Brett Kavanaugh and Judge Thomas Griffith. Both were appointed by President George W. Bush. The lone dissenter was Judge Judith Rogers, who was nominated by Bill Clinton in 1994.