As you know, the interstate rule was the foundation of the Bush administration’s air pollution policy, and that foundation was blown to smithereens. What’s next?
Before we get to that, we must pause for a second and look at the comments on this from the lead industry plaintiff, Duke Energy.
After the decision came down, Duke lied through its smoke-stained teeth, asserting to the news media (including the New York Times, Charlotte Observer, etc.) that killing the rule wasn’t its objective.
For example: “Our whole focus was not to overturn CAIR, but to make sure we got the appropriate number of allowances,” [Duke spokesman] Williams told the Observer.
But Duke’s agenda was exactly to overturn CAIR. It said so in its legal brief to the court. See page 34 of the Duke legal brief : “EPA's CAIR SO2 rules exceed EPA's authority and are arbitrary, capricious and an abuse of discretion. This Court should vacate them."
One of the most interesting pieces we’ve read on this is today’s story in Greenwire, in which former EPA Assistant Administrator Jeff Holmstead predicts a “huge mess” as a result of the decision. Reports Greenwire:
In an interview, Holmstead said it was too soon to see the full impact of
last week's court ruling. But he said the decision will likely result in work
stoppages at dozens of power plants where new air pollution equipment is being
installed to comply with what would have been CAIR's first round of
implementation next year.
While some air pollution projects that were near completion may proceed,
others almost certainly will be suspended, Holmstead said. And even some
finished projects may sit idle if there is no requirement that pollution levels
must come down.
"These companies have a fiduciary duty to their stockholders," Holmstead
said. "Let's say you're building a huge scrubber to comply with CAIR, and part
of your costs were going to be offset because you were going to sell allowances.
You no longer have to build a scrubber, and you also no longer have an allowance
market to offset your costs."
It has to be more than a trifle awkward for Holmstead. As Greenwire notes, he was the “primary architect” of the discarded rule. He’s also a registered lobbyist for Duke, though I don’t believe he was involved in the litigation.
States, the ball is in your court! As our friend and colleague, Vickie Patton of Environmental Defense Fund notes, the court noted that state governments still have the legal right to use the Clean Air Act (Section 126) to compel reductions in pollution from upwind states. (The now-defunct EPA rule was issued as a way to head off such petitions in the first place.) We would not be surprised to see some states move promptly to file petitions. They’d better!