The Cross-State Air Pollution Rule: Keep Your Dirty Air to Yourself

Photo by jepoirrier. Some rights reserved.

Though the implementation deadline for the Cross-State Air Pollution Rule (“CSAPR”) is just a few short weeks away, many folks’ defiant response has been: Keep your Cross-State Air Pollution Rule to yourself.

The final rule, published by the EPA in the Federal Register on August 8th of this year, endeavors to reduce air pollution by limiting power plant emissions of sulfur dioxide (SO2) and nitrogen oxide (NOX) that cross state lines. By 2014, this rule is estimated to prevent a whopping 13,000 to 34,000 premature deaths annually.

However, not everyone is as excited as the EPA about the reduction in premature deaths.

Two bills currently working their way through Congress include sections or amendments aiming to hobble the act. An amendment in the Transparency in Regulatory Analysis of Impacts on the Nation Act of 2011 (H.R. 2401) would delay action on CSAPR until an interagency panel has an opportunity to investigate the economic impact of various air emissions rules. H.R. 2891, America’s Energy Independence Act, proposes to delay the initial compliance deadline of CSAPR for ten years.

And Congress members aren’t the only ones squawking. At least eight states, and several private companies, have consolidated seven separate cases against the EPA into a singular challenge to the rule. Jenner & Block has more on the super-case, EME Homer City Generation, L.P. v. EPA No. 11-1302 (D.C. Cir. filed Aug. 23, 2011).

Because the displeasure has been so loud, many owners or operators of the subject power plans – high on the idea that the rule might not survive pending legislative and legal challenges – are unlikely to “install expensive pollution control technologies or to engage fully in CSAPR’s emission allowance markets,” despite the pending compliance date, according to a recent Client Publication from Shearman & Sterling.

Still, it hasn’t stopped companies from fretting: There have been at least 250 appearances of the terms CSAPR or Cross-State Air Pollution Rule in SEC filings since the rule was finalized, many in the vein of: “If finalized, the rule’s new requirements to control mercury emissions could result in implementation of additional technologies at power plants that could negatively affect fly ash quality,” or “The Cross-State Air Pollution Rules, if commenced on January 1, 2012, could adversely affect cost of operations at our Roanoke Valley Energy Facility.”

You can read more about the CSAPR here.

One response to this post.

  1. […] the rule in July, including memos from Van Ness Feldman and from Cadwalader, and our previous post summarized opposition to the rule. Two bills in Congress would delay the compliance deadline of CSAPR, but for […]


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