The Hidden Silver Lining In The EPA’s Most Recent Court Loss

If you just read the headlines, it looks clear that the Environmental Protection Agency suffered a loss in court this week.

On Tuesday, the D.C. Circuit Court of Appeals told the agency that it must loosen some of its restrictions on air pollution that crosses state lines. In 13 states, the court ruled, the EPA’s limits on sulfur dioxide and nitrogen oxide emissions that drift over into other states were too strict. Now, the EPA must go back and rewrite how those states should comply with the Cross-State Air Pollution Rule, also known as CSAPR (pronounced “casper”).

That’s obviously not great news for the agency, but in a statement to ThinkProgress, the EPA said it was “pleased” with the result.

Indeed, for the EPA, there are two silver linings within Tuesday’s ruling. The more obvious one is that, despite the fact that it has to go back and re-do some of it, the rule itself was upheld. Brought by a number of states, the court case had been trying to eliminate the rule entirely, arguing that the EPA didn’t have the authority to tell them to reduce their emissions for the benefit of other states. The D.C. Circuit rejected that argument, noting the Supreme Court had strongly affirmed the rule last year.

In other words, the agency may have to re-write some states’ emissions targets, but it doesn’t have to re-do the entire thing. And while it’s re-writing those parts, the 13 states still have to comply with the rule.

“EPA is pleased that the court decision keeps the Cross-State Rule in place so that it continues to achieve important public health protections,” an agency spokesperson said in an email. “The Cross-State Rule was promulgated to address a serious problem and continued implementation of the rule will lead to significant benefits for human health and the environment.” The EPA estimates the rule will achieve $280 billion in annual health benefits by preventing up to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma, and 1.8 million sick days a year.

The second silver lining is less obvious. Tuesday’s ruling, some attorneys say, adds a bit more padding to the idea that courts like to uphold EPA regulations most of the time — even if they find the regulation to be partially flawed. For example, when the Supreme Court found flaws with the EPA’s Mercury Air Toxics rule last month, it didn’t invalidate the rule — it merely sent it back to the D.C. Circuit for review. The D.C. Circuit could very well invalidate the rule, but some attorneys say it’s likely that it will be upheld, and the EPA will be told to make some fixes.

“The best alternative to a flawed protection isn’t no protection, it’s better protection,” Earthjustice attorney Neil Gormley, who represented intervenor groups in the mercury case, told ThinkProgress. “So that’s why courts are giving the EPA the opportunity to fix errors instead of invalidating those rules entirely.”

The fact that courts have been wary to invalidate EPA rules is a good sign for the agency’s controversial climate regulations, which are expected to be finalized as soon as next week. Because once those regulations are finalized, they’re expected to be subject to a barrage of lawsuits seeking to invalidate them, both from the coal industry and from coal-heavy states.

But environmental groups are confident that the EPA will come away from those legal challenges largely unscathed.

“EPA has an excellent track record in court, and the Clean Power Plan should be sustained against expected attacks,” said David Doniger, director of the Climate and Clean Air Program at the Natural Resources Defense Council, in a press release on Thursday.

In that same statement, Sierra Club Chief Climate Counsel Joanne Spalding agreed. “EPA has won each round to date and its winning streak is likely to continue because the Clean Power Plan is on solid footing,” she said.

Of course, litigation is often unpredictable. As with Tuesday’s ruling on CSAPR and last month’s ruling on the mercury regulations, there is always a chance that a court could find a legal problem with the EPA’s climate rule. But if those rulings are any indication, it’s less likely that a legal problem would result in a full repeal of the landmark rule.

“It often is the case when rules are challenged that the agency might not come away with 100 percent on everything,” Howard Fox, an Earthjustice attorney who worked on the CSAPR case, told ThinkProgress. “But that doesn’t mean it’s a loss. You have to look at the big picture.”

Tags

Air PollutionClean Power PlanClimate ChangeCross-state air pollutionCSAPREPAEPA Climate Rule

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