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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. People have heard of Magna Carta, and not the Provisions of Oxford & Westminster. Not that anybody really cares. Today, it might be considered ethnic or racial bias to talk about the "Anglo Saxon common law." I don't even see the word English in the blurb above. Anyhow speaking of Edward I-- he was famously intolerant of diversity himself viz the Edict of Expulsion 1290. So all he did too like making parliament a permanent institution-- that all must be discredited. 100 years from now such commemorations will be in the dustbin of history.

  2. Oops, I meant discipline, not disciple. Interesting that those words share such a close relationship. We attorneys are to be disciples of the law, being disciplined to serve the law and its source, the constitutions. Do that, and the goals of Magna Carta are advanced. Do that not and Magna Carta is usurped. Do that not and you should be disciplined. Do that and you should be counted a good disciple. My experiences, once again, do not reveal a process that is adhering to the due process ideals of Magna Carta. Just the opposite, in fact. Braveheart's dying rebel (for a great cause) yell comes to mind.

  3. It is not a sign of the times that many Ind licensed attorneys (I am not) would fear writing what I wrote below, even if they had experiences to back it up. Let's take a minute to thank God for the brave Baron's who risked death by torture to tell the government that it was in the wrong. Today is a career ruination that whistleblowers risk. That is often brought on by denial of licenses or disciple for those who dare speak truth to power. Magna Carta says truth rules power, power too often claims that truth matters not, only Power. Fight such power for the good of our constitutional republics. If we lose them we have only bureaucratic tyranny to pass onto our children. Government attorneys, of all lawyers, should best realize this and work to see our patrimony preserved. I am now a government attorney (once again) in Kansas, and respecting the rule of law is my passion, first and foremost.

  4. I have dealt with more than a few I-465 moat-protected government attorneys and even judges who just cannot seem to wrap their heads around the core of this 800 year old document. I guess monarchial privileges and powers corrupt still ..... from an academic website on this fantastic "treaty" between the King and the people ... "Enduring Principles of Liberty Magna Carta was written by a group of 13th-century barons to protect their rights and property against a tyrannical king. There are two principles expressed in Magna Carta that resonate to this day: "No freeman shall be taken, imprisoned, disseised, outlawed, banished, or in any way destroyed, nor will We proceed against or prosecute him, except by the lawful judgment of his peers or by the law of the land." "To no one will We sell, to no one will We deny or delay, right or justice." Inspiration for Americans During the American Revolution, Magna Carta served to inspire and justify action in liberty’s defense. The colonists believed they were entitled to the same rights as Englishmen, rights guaranteed in Magna Carta. They embedded those rights into the laws of their states and later into the Constitution and Bill of Rights. The Fifth Amendment to the Constitution ("no person shall . . . be deprived of life, liberty, or property, without due process of law.") is a direct descendent of Magna Carta's guarantee of proceedings according to the "law of the land." http://www.archives.gov/exhibits/featured_documents/magna_carta/

  5. I'm not sure what's more depressing: the fact that people would pay $35,000 per year to attend an unaccredited law school, or the fact that the same people "are hanging in there and willing to follow the dean’s lead in going forward" after the same school fails to gain accreditation, rendering their $70,000 and counting education worthless. Maybe it's a good thing these people can't sit for the bar.

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