By Brett Rosenberg
September 29, 2008

A three-judge panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit this year overturned a widely hailed EPA regulation that would have considerably reduced air pollution in the eastern United States. The Court, citing much of the Clean Air Interstate Rule, known as CAIR, as “fundamentally flawed” sent the rule back to the EPA for wholesale revisions in order to comply with the Clean Air Act.

CAIR, according to the EPA and others, would have reduced nitrogen oxides (NOx) and sulfur dioxide (SO2) emissions from coal-fired utilities in 28 eastern states and the District of Columbia through a cap-and-trade system and other mechanisms. According to EPA modeling, when fully implemented in 2015, CAIR would reduce NOx emissions by 61 percent below 2003 levels and SO2 emissions by 57 percent. Further, according to EPA estimates, CAIR would result in $85 to $100 billion in annual health benefits, including the annual prevention of 17,000 premature deaths, millions of lost work and school days, and thousands of hospital admissions. Similar estimates predict nearly $2 billion in annual visibility benefits in southeastern national parks.

Almost immediately following the appeals court ruling, several stakeholders, including many in the environmental and regulated community, condemned the decision, due largely to the uncertainty left in the decision’s wake.

Soon after the decision, Senators Tom Carper (DE) and George Voinovich (OH) presided over a Senate subcommittee hearing into possible responses. Both senators said they were concerned about the economic and environmental effects of the court’s decision, but they did not anticipate congressional action on a short-term bill that simply asserted EPA’s authority to implement all or any of the air pollution regulation through legislative means.

On the House side, the Ranking Member of the Energy and Commerce Committee, Rep. Joe Barton (TX), turned down a request from Committee Chair John Dingell (MI) for support for such a legislative fix this session. Barton reportedly said that he would rather take a more thorough look at both CAIR and the Clean Air Act in the next Congress. The Democrats had planned to move the legislative fix under suspension rules, which require support by two-thirds of House members, but Barton’s opposition effectively kills any chance of passage in the House.