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Indiana pleased with decision to vacate EPA Transport Rule

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The split decision by the U.S. Court of Appeals for the District of Columbia Circuit to vacate the Environmental Protection Agency’s Cross-State Air Pollution Rule because of federal law violations is “great news” for Indiana, Gov. Mitch Daniels said.

The Circuit Court ruled Tuesday that the EPA’s rule, also known as the Transport Rule, exceeds the agency’s statutory authority. That rule defines emissions reduction responsibilities for 28 upwind states based on those state’s contributions to downwind states’ air quality problems. The rule targets two pollutants, sulfur dioxide and nitrogen oxides, which often come from coal- and natural-gas-fired power plants.  

Indiana joined 14 attorneys general from upwind states in opposing the rule in EME Homer City Generation L.P. v. Environmental Protection Agency, et al., 11-1302.

 The statutory text only grants the agency authority to require upwind states to reduce their own significant contributions to a downwind state’s nonattainment. But under the rule, upwind states may be required to reduce emissions by more than their own significant contributions to a downwind state’s nonattainment.

“EPA has used the good neighbor provision to impose massive emissions reduction requirements on upwind States without regard to the limits imposed by the statutory text. Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute,” Judge Brett Kavanaugh wrote.

He also pointed out the Clean Air Act allows states the initial opportunity to implement required EPA reductions under the good neighbor provision, but when the EPA quantified the states’ good neighbor obligations, it didn’t allow them the initial opportunity to implement the reductions with respect to sources within their borders.

“Instead, EPA quantified States’ good neighbor obligations and simultaneously set forth EPA-designed Federal Implementation Plans, or FIPs, to implement those obligations at the State level. By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the Act,” Kavanaugh explained.

"This repudiation of EPA's overreaching regulation is great news for Hoosier ratepayers and job seekers,” Daniels said in a statement. “Indiana is in compliance with federal clean air limits for the first time ever, and our air quality is the best since measurement began.  This ruling means that our affordable energy costs can remain one of our best arguments in attracting new businesses."  
The majority sent the case to the EPA to continue administering Clean Air Interstate Rule, pending promulgation of a valid replacement.
Judge Judith Ann Wilson Rogers dissented because by vacating the Transport Rule, the majority disregarded the limits Congress placed on its jurisdiction, the plain text of the Clean Air Act, and the Circuit Court’s settled precedent interpreting the same statutory provisions at issue.

“The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress’s vision of cooperative federalism between the States and the federal government in implementing the CAA based on the court’s own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court’s precedent on which the Environmental Protection Agency (“EPA”) was entitled to rely in developing the Transport Rule rather than be blindsided by arguments raised for the first time in this court,” she wrote.

 

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  1. File under the Sociology of Hoosier Discipline ... “We will be answering the complaint in due course and defending against the commission’s allegations,” said Indianapolis attorney Don Lundberg, who’s representing Hudson in her disciplinary case. FOR THOSE WHO DO NOT KNOW ... Lundberg ran the statist attorney disciplinary machinery in Indy for decades, and is now the "go to guy" for those who can afford him .... the ultimate insider for the well-to-do and/or connected who find themselves in the crosshairs. It would appear that this former prosecutor knows how the game is played in Circle City ... and is sacrificing accordingly. See more on that here ... http://www.theindianalawyer.com/supreme-court-reprimands-attorney-for-falsifying-hours-worked/PARAMS/article/43757 Legal sociologists could have a field day here ... I wonder why such things are never studied? Is a sacrifice to the well connected former regulators a de facto bribe? Such questions, if probed, could bring about a more just world, a more equal playing field, less Stalinist governance. All of the things that our preambles tell us to value could be advanced if only sunshine reached into such dark worlds. As a great jurist once wrote: "Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman." Other People's Money—and How Bankers Use It (1914). Ah, but I am certifiable, according to the Indiana authorities, according to the ISC it can be read, for believing such trite things and for advancing such unwanted thoughts. As a great albeit fictional and broken resistance leaders once wrote: "I am the dead." Winston Smith Let us all be dead to the idea of maintaining a patently unjust legal order.

  2. The Department of Education still has over $100 million of ITT Education Services money in the form of $100+ million Letters of Credit. That money was supposed to be used by The DOE to help students. The DOE did nothing to help students. The DOE essentially stole the money from ITT Tech and still has the money. The trustee should be going after the DOE to get the money back for people who are owed that money, including shareholders.

  3. Do you know who the sponsor of the last-minute amendment was?

  4. Law firms of over 50 don't deliver good value, thats what this survey really tells you. Anybody that has seen what they bill for compared to what they deliver knows that already, however.

  5. As one of the many consumers affected by this breach, I found my bank data had been lifted and used to buy over $200 of various merchandise in New York. I did a pretty good job of tracing the purchases to stores around a college campus just from the info on my bank statement. Hm. Mr. Hill, I would like my $200 back! It doesn't belong to the state, in my opinion. Give it back to the consumers affected. I had to freeze my credit and take out data protection, order a new debit card and wait until it arrived. I deserve something for my trouble!

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