Federal Appeals Court Upholds Texas Challenge to EPA Power Plant Pollution Rule

Thumbnail image for Thumbnail image for TXU_BigBrown-coal-plant.jpg
Luminant's Big Brown Plant
A split three-judge panel of a federal appeals court rejected an EPA rule that would curb the drift of harmful power plant pollutants across state lines. The agency, the majority ruled, had overstepped its authority under the Clean Air Act.

The legal challenge was mounted by a number of states and industries, including Texas and Dallas-based power generator Luminant. Last summer, the company threatened to idle two generating units at its Monticello plant if it was forced to comply with the rule, which would require vast reductions in nitrogen oxide and sulfur dioxide emissions. Both are precursors of fine particulate matter, a pollutant capable of traveling hundreds of miles on the wind and causing chronic obstructive pulmonary disease, or COPD. Based on how much an upwind state's emissions contribute to a downwind state's failure to meet federal pollution standards, the agency set regional limits and allowed polluters to trade a finite number of allowances per ton of pollutant.

The problem, as the majority sees it, is that the EPA drew up a federal plan for state-by-state reductions without first letting states submit their own. The agency, the judges said, was forcing upwind states to guess at what their "good neighbor" reductions would need to look like What's more, they worry that some states may be required to reduce emissions by more than their fair share.

The majority was quick to point out that its ruling had nothing to do with the merits of the policy.

The dissent, penned by U.S. Court of Appeals for the 5th Circuit Judge Judith Rogers, on the other hand, found that the EPA was not obligated to calculate a state's contribution to downwind pollution under the Clean Air Act. States are responsible for operating sophisticated air monitors, she notes, and are no strangers to modeling the interstate movement of pollution. The circuit judge suspected the parties in this case had other motives for not submitting their own plans. "(T)heir reason for not doing so appears to stem from insistence (supported by industry sources) that their reduction of emissions not be one iota greater than is necessary for downwind States to attain and maintain (federal air quality standards)."

At any rate, the judge writes, these complaints should have been brought during the rule's comment period, when states and stakeholders had an opportunity to weigh in on its eventual form. To strike down the law at this stage, Rogers implied, looks a lot like judicial activism.

"The court ignores Congress's limitations on the court's jurisdiction and decades of precedent strictly enforcing those limitations and proceeds to do violence to the plain text of the (Clean Air Act) and EPA's permissible interpretations of the CAA, all while claiming to be 'apply[ing] and enforc[ing]' the statute as it's now written.

"The result is the endorsement of a 'maximum delay' strategy for regulated entities, rewarding States and industry for cloaking their objections throughout years of administrative rulemaking procedures."

Pending a replacement, the court will leave in place the rule's predecessor, the Clean Air Interstate Rule. It was invalidated by the court in 2008 because some states would be able to acquire so many pollution credits they wouldn't actually have to reduce their emissions. Texas and electricity generators responsible for the majority of airborne pollution were handed a decisive victory -- the continuance of the status quo.

"With this litigation behind us, we look forward to continuing to provide safe and environmentally responsible operations across our generation fleet and to meeting or outperforming all environmental laws and regulations," Luminant CEO David Campbell said in a release.

Luminant is a subsidiary of Dallas-based Energy Future Holdings, which, we noted recently, may be preparing its power plant and retail electricity assets for bankruptcy. Had the court upheld the rule, the generator would have been forced to retrofit its aging coal-fire fleet with modern pollution control devices.

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It is outrageous that the EPA has to follow the letter of the law!  Will someone please think about the children?

mavdog topcommenter

I'm sure the people who are downwind of these plants that are now allowed to spew unhealthful amounts (verified to be health threatening mind you) of sulphur dioxide and nitrogen oxide into their air really appreciate and are thankful for this ruling....


"The court's decision states it plainly: "Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority."

The message is that regulators must follow the laws of the United States. Why do federal judges constantly have to remind EPA Administrator Lisa Jackson of this basic principle?"


ThePosterFormerlyKnownasPaul topcommenter

The grandfather clause in the original Clean Air Act has been used and abused beyond all recognition in my opinion.


The intent of this clause was to allow utilities to recover their investment in plants built prior to the CAA original effective date.


It has been over 40 years since the CAA was originally enacted.  If the original investment has not been recovered then why was the plant built?


I think that the only original item left at some of these plants is the sign at the front gate.


So My White Libtard Guilt Non Bishop Arts residing  self has to ask this question.


Since  the plants won't be closed that means that the price of electricity will remain stable and might even go down ?


Which would be the POSITIVE opposite from what the Providers were and are telling us we will live with threats of Brown outs and Massive price increases if  the plants didn't Stay on line  And All Texans  would face the fiery pits of August hell for angering the Utility GODS.


They won So we won Right ?


 @ThePosterFormerlyKnownasPaul You can pretty much extend the life of a plant indefinitely with a little refurbishment here and there. I don't think that's exactly what Congress had in mind when they exempted existing plants, and those built in the rush before the law was enacted.

ThePosterFormerlyKnownasPaul topcommenter

 @brantley.hargrove1 ... a little refurbishment here ... a little repair there ... a minor modification over there .... after a while the only original item that is left is the sign and the front gate and it has been repainted several times.


Many of the components in the steam generators in modern steam electric plants do have a limited life.


At some point in time, the uncontrolled power plants need to be shut down or retrofitted with various control technologies for sulfur dioxide and particulates.


One of the outcomes of the CAA was the reduction in high sulfur coal being mined in the Ohio/Illinois/Indiana/Kentucky/WVa area and the expansion of the coal mines in the Powder River Basin.


The CAA never envisioned that uncontrolled pre CAA power plants would continue to operate indefinitely.

everlastingphelps topcommenter

 @brantley.hargrove1 What?  Congress passing a law that they didn't understand in an industry where they had no expertise that ends up with perverse incentives and nothing added to society except meaningless and wasteful red tape?


If they weren't doing that, how else would they spend their time?

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