Yesterday marked yet another 2012 loss for the EPA in the U.S. Court of Appeals for the D.C. Circuit:
Enacted in August 2011, the Cross-State Air Pollution Rule was supposed to reduce air pollution emitted in one state and carried downwind to another. Under the Clean Air Act, if pollution from the upwind state is causing the downwind neighbor to fail federal air quality tests, then the EPA can order the upwind state to reduce the emissions causing the problem.
But even such expansive authority from Congress is never enough for the Obama EPA. So the agency decided to use the rule-making as a pretext to force down emissions even further—illegally, as it turns out.
In Tuesday’s decision, two of the three judges on the appellate panel found that under the rule “upwind States may be required to reduce emissions by more than their own significant contributions to a downwind State’s nonattainment. EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text.”
The court found that the feds also broke the law by dictating the measures to be used to reduce emissions instead of allowing states to design their own plans, as the statute demands. “Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable,” wrote Judge Brett Kavanaugh.
The rule as an idea doesn’t sound so bad. Most people would agree that it isn’t fair for one state to be able to dump pollution into the air of another state. But, of course, rather than following the law the way that it was written the EPA decided to write new rules that they wanted, forcing states to drop pollution levels more than was required by law, and not giving them the flexibility to develop their own plans for pollution reduction.
As the WSJ concluded:
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?
The EPA under Obama has been rebuked by the courts 6 separate times. We can only assume this won’t be the last time.