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July 21, 2008
Volume 86, Number 29
p. 13


Court Nixes Power Plant Regulation

EPA must redo rule to curb SO2 and NOx emissions

Cheryl Hogue & Jeff Johnson

EPA MUST completely rewrite the Clean Air Act regulation it designed to reduce power plant pollution linked to smog and acid rain, a federal court ruled on July 11.

The Bush Administration's 2005 Clean Air Interstate Rule (CAIR) contains "several fatal flaws," the U.S. Court of Appeals for the District of Columbia Circuit said.


The regulation was aimed at reducing emissions of sulfur dioxide and nitrogen oxides from power plants in 28 eastern states and the District of Columbia. SO2 causes acid rain, and NOx is a precursor to ground-level ozone, or smog.

The rule set a cap for the pollutants across the region, rather than requiring all facilities to cut their releases of the substances. It allowed power plants that reduced their emissions the most to sell allowances to facilities that maintained or increased their releases of SO2 and NOx.

North Carolina and several utilities challenged the rule in court. North Carolina argued that the regulation would allow power plants in neighboring states to emit more pollution that would blow into its jurisdiction. Utilities, meanwhile, complained that the rule was not fair in how it doled out allowances for pollution reductions.

The court agreed with both arguments. A three-judge panel directed EPA to start from scratch on a regulation to reduce SO2 and NOx from power plants. "No amount of tinkering ... will transform CAIR, as written, into an acceptable rule," the court explained.

The Administration has not determined whether it will appeal the decision, says a Department of Justice attorney. It has until late August to decide.

CAIR was one of the two hallmark regulations of the Bush Administration under the Clean Air Act. Federal courts have now struck down both. The other rule controlled mercury emissions from coal-fired power plants and was overturned in February (C&EN, Feb. 18, page 6).

The Bush Administration had first pushed for a law to regulate SO2, NOx, and mercury—the Clear Skies Initiative—in 2002. When the initiative failed to gain enough support in the Senate, EPA moved ahead with a pair of regulations: one addressing SO2 and NOx emissions and the other targeting mercury.

The two decisions essentially leave it up to the next president to rework the overturned rules, and they let utilities continue their current emissions until EPA finalizes new regulations.

The rulings could push Congress into passing pending legislation that would reduce SO2, NOx, and mercury—and perhaps carbon dioxide—from power plants.

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Chemical & Engineering News
ISSN 0009-2347
Copyright © 2009 American Chemical Society

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