EPA isn't ready to give up the fight over a rule aimed at curbing air pollution wafting across state lines. The agency filed a petition with the U.S. Court of Appeals for the D.C. Circuit Friday morning, asking for a re-hearing before the full court.
This comes more than a month after, a three-judge panel tossed the Cross-State Air Pollution Rule in a 2-1 ruling -- a decision the agency and the dissenting judge say is deeply flawed.
If Texas Attorney General Greg Abbott was worried about where his next federal fight was going to come from, he need not fear. Considering the gulf between the dissent's conclusion and the majority's, an en banc rehearing sounds like a good bet.
A whole host of lawsuits were filed in 2011 by states like Texas and electricity generators like Dallas-based Luminant, which predicted the emission reductions required by the law would force it to unit shut downs and lay off some 500 people. (It announced last month that it would be idling the units for six months anyway. As we noted in a post earlier today, the electricity market is already doing a bang-up job of pounding coal-fired power.)
The state's and industry won a decisive victor when the panel majority reasoned that, under the law, upwind states would have to calculate on their own how much pollution they were pumping into downwind states, which they argue is extremely difficult and unfair.
The dissenting judge wasn't buying it, concluding that states create these kinds of pollution models all the time, and that nowhere in the Clean Air Act did Congress put EPA in charge of calculating it for them.
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In its petition, the agency says the court has essentially rewritten federal law. What's more, the EPA argues that the basis of the lawsuit was never mentioned during the public comment period before the rule was adopted. Besides, the Feds add, they were forced to step in and take the reins, as required by the Clean Air Act, because the states subject to the rule either didn't submit an implementation plan, or the plan they submitted didn't work.
"Certainly, Congress never intended courts to develop regulatory policy out of whole cloth in an area of this significance," the petition reads, "but that is precisely the effect of the panel's decision here."
Basically, both the dissenting judge and EPA are charging the other two judges with rank judicial activism in striking down one of the agency's key pollution-control strategies, rooted in the text of the Clean Air Act. Texas should be ready to go at least another round with EPA.