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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. On a related note, I offered the ICLU my cases against the BLE repeatedly, and sought their amici aid repeatedly as well. Crickets. Usually not even a response. I am guessing they do not do allegations of anti-Christian bias? No matter how glaring? I have posted on other links the amicus brief that did get filed (search this ezine, e.g., Kansas attorney), read the Thomas More Society brief to note what the ACLU ran from like vampires from garlic. An Examiner pledged to advance diversity and inclusion came right out on the record and demanded that I choose Man's law or God's law. I wonder, had I been asked to swear off Allah ... what result then, ICLU? Had I been found of bad character and fitness for advocating sexual deviance, what result then ICLU? Had I been lifetime banned for posting left of center statements denigrating the US Constitution, what result ICLU? Hey, we all know don't we? Rather Biased.

  2. It was mentioned in the article that there have been numerous CLE events to train attorneys on e-filing. I would like someone to provide a list of those events, because I have not seen any such events in east central Indiana, and since Hamilton County is one of the counties where e-filing is mandatory, one would expect some instruction in this area. Come on, people, give some instruction, not just applause!

  3. This law is troubling in two respects: First, why wasn't the law reviewed "with the intention of getting all the facts surrounding the legislation and its actual impact on the marketplace" BEFORE it was passed and signed? Seems a bit backwards to me (even acknowledging that this is the Indiana state legislature we're talking about. Second, what is it with the laws in this state that seem to create artificial monopolies in various industries? Besides this one, the other law that comes to mind is the legislation that governed the granting of licenses to firms that wanted to set up craft distilleries. The licensing was limited to only those entities that were already in the craft beer brewing business. Republicans in this state talk a big game when it comes to being "business friendly". They're friendly alright . . . to certain businesses.

  4. Gretchen, Asia, Roberto, Tonia, Shannon, Cheri, Nicholas, Sondra, Carey, Laura ... my heart breaks for you, reaching out in a forum in which you are ignored by a professional suffering through both compassion fatigue and the love of filthy lucre. Most if not all of you seek a warm blooded Hoosier attorney unafraid to take on the government and plead that government officials have acted unconstitutionally to try to save a family and/or rescue children in need and/or press individual rights against the Leviathan state. I know an attorney from Kansas who has taken such cases across the country, arguing before half of the federal courts of appeal and presenting cases to the US S.Ct. numerous times seeking cert. Unfortunately, due to his zeal for the constitutional rights of peasants and willingness to confront powerful government bureaucrats seemingly violating the same ... he was denied character and fitness certification to join the Indiana bar, even after he was cleared to sit for, and passed, both the bar exam and ethics exam. And was even admitted to the Indiana federal bar! NOW KNOW THIS .... you will face headwinds and difficulties in locating a zealously motivated Hoosier attorney to face off against powerful government agents who violate the constitution, for those who do so tend to end up as marginalized as Paul Odgen, who was driven from the profession. So beware, many are mere expensive lapdogs, the kind of breed who will gladly take a large retainer, but then fail to press against the status quo and powers that be when told to heel to. It is a common belief among some in Indiana that those attorneys who truly fight the power and rigorously confront corruption often end up, actually or metaphorically, in real life or at least as to their careers, as dead as the late, great Gary Welch. All of that said, I wish you the very best in finding a Hoosier attorney with a fighting spirit to press your rights as far as you can, for you do have rights against government actors, no matter what said actors may tell you otherwise. Attorneys outside the elitist camp are often better fighters that those owing the powers that be for their salaries, corner offices and end of year bonuses. So do not be afraid to retain a green horn or unconnected lawyer, many of them are fine men and woman who are yet untainted by the "unique" Hoosier system.

  5. I am not the John below. He is a journalist and talk show host who knows me through my years working in Kansas government. I did no ask John to post the note below ...

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