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Court ruling keeps the poison coming



Last modified: Friday, August 24, 2012
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Every year without an EPA rule limiting the air pollution from coal-burning states that descends on downwind states like New Hampshire costs some people their lives. The group Environment New Hampshire pegs the needless death toll at 46,000. The Environmental Protection Agency places the figure at between 13,000 and 34,000 lives per year. It also says the Cross-State Air Pollution Rule would improve the health of 240 million people and save up to $280 billion per year in avoided health care costs and other expenses.

The latest version of the rule was rewritten in response to a 2008 order of the U.S. Court of Appeals for the District of Columbia that said it was too weak. It was slated to go into effect in last January. On Tuesday, by a 2-1 vote, an appeals court panel overturned the rule yet again and told the agency to rewrite it. The delay means coal-burning utilities in Texas, Ohio and other states will be able to continue to operate ancient power plants that have been poisoning people in downwind states for three decades.

The justices who found fault with the rule did so largely on federalist grounds:

"Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable. Rather, Congress set up a federalism-based system of air pollution control. Under this cooperative federalism approach, both the Federal Government and the States play significant roles. The Federal Government sets air quality standards for pollutants. The States have the primary responsibility for determining how to meet those standards and regulating sources within their borders," Judge Brett Kavanaugh wrote in an opinion joined by Judge Thomas Griffith. Both men were appointed by President George W. Bush; the dissenting judge was appointed by President Bill Clinton.

The majority ruling is long and complicated, its reasoning tortured, and the court's own precedents ignored.

The EPA, under several presidents, has been trying to craft regulations to get around the reluctance to act on the part of lawmakers in coal-producing states and states heavily dependent on burning coal for power. Rewriting the rule yet again would take years, and its ultimate adoption would again be subject to the whim of the D.C. court.

The agency, with the support of the congressional delegations of New Hampshire and the other 27 states where lakes are being poisoned and lungs clogged by the big polluting states, should appeal the panel's decision to the full nine-member court. That will be faster than going directly to the U.S. Supreme Court, an option that the agency should pursue if the full lower court against finds against it or declines to hear the appeal.

Had the court allowed the rule to go forward, the emissions of sulfur dioxide and nitrogen oxide in the air en route to New England would have been cut in half. New Hampshire would have fewer unsafe air days, days when, in a tourist state with a legendary landscape, people are warned not to exercise strenuously and to use caution when outdoors. That won't happen anytime soon, thanks to a misguided ruling by two judges who work in a national capital whose air is also fouled by the very polluters the EPA wants to regulate more stringently.'