Appeals Court Rejects Challenge to Life-Saving Cross-State Air Pollution Rule

(Washington, D.C. – March 3, 2023) The U.S. Court of Appeals for the D.C. Circuit today unanimously rejected a challenge to the most recent update of the U.S. Environmental Protection Agency’s (EPA) Cross-State Air Pollution Rule, which protects millions of Americans from dangerous air pollution that blows across state lines from upwind coal-fired power plants. Today’s decision means those protections will remain in place, and it clears the way for the U.S. Environmental Protection Agency to update and strengthen safeguards to meet the imperative to restore healthy air for millions of people.

“The Cross-State Air Pollution Rule protects millions of Americans from the smokestack pollution that blows downwind, crosses state lines, and puts their health at risk,” said Vickie Patton, General Counsel for Environmental Defense Fund, which is a party to the case. “Today’s court decision means the successful and vitally important protections of the Cross-State Air Pollution Rule will stay in effect. Now our nation needs to work together to address the extensive smokestack pollution that continues to harm public health, including power plants that continue to operate today without basic modern pollution controls. With additional protective action by EPA under the Good Neighbor program, our nation can help restore cleaner, healthier air for all people afflicted by smog.”

The Cross-State Air Pollution Rule was created under the "Good Neighbor" protections of the Clean Air Act. It reduces ground-level ozone, commonly known as smog, that is emitted from coal-fired power plants. That smog drifts across state borders and contributes to dangerous, sometimes lethal, levels of pollution in downwind states. Smog is a caustic pollutant that aggravates asthma, is linked to a wide array of heart and lung diseases and can cause premature deaths. It is especially harmful for children, seniors, people with asthma and other lung problems, and outdoor workers. Pollution from upwind states contributes heavily to downwind states’ inability to meet an EPA health-based smog standard set in 2008.

EPA issued the Cross-State Air Pollution Rule in 2011 and has updated it several times since to help restore clean, healthy air for millions of people. The agency’s most recent update, in March of 2021, required coal plants in 12 states – Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and West Virginia – to use the modern, effective pollution controls that they have already installed, as well as update their pollution controls. Coal-fired power plants that have pollution controls sometimes don’t operate them, or don’t use them to full capacity.

A group of coal-based power companies and others sued to roll back the Cross-State Air Pollution Rule. EDF intervened to protect these clean air measures, in partnership with the Sierra Club, Earthjustice and the Clean Air Task Force. The states of New York, Delaware, Massachusetts and New Jersey also filed an amicus brief in support of the Cross-State Air Pollution Rule. 

Today the D.C. Circuit rejected the challenge by the coal-based power companies and others, saying:

“In this appeal, [petitioners contend] that the Revised Rule is arbitrary and capricious, and that EPA failed to conduct a legally and technically appropriate assessment as required by the Good Neighbor Provision of the Clean Air Act. We disagree. Instead, we hold that the Revised Rule is an appropriate exercise of EPA’s statutory authority under the ‘Good Neighbor Provision, and deny the petition on the merits.”

The updated Cross-State Air Pollution Rule that was upheld today is expected to reduce smog-forming pollution from the coal-fired power plants under its jurisdiction by 19 percent over 2019 levels, provide an estimated $2.8 billion in health and environmental benefits, and help states reach our 2008 health-based smog standard. However, our national health-based smog standard was updated and made more protective in 2015 in light of extensive peer-reviewed public health science. In March of 2022, as required by the Clean Air Act and a court deadline, EPA proposed another update to the Cross-State Air Pollution Rule, with stronger protections that will guard the health of more people in downwind states. It will also help our national air quality meet the vital 2015 health standard for smog. EDF filed comments strongly supporting the update, also submitted joint comments with 16 other health, environmental and community groups in support of EPA’s good neighbor proposal.