Court Decision on Air Pollution Drifts Down Into Chesapeake Bay

Air pollution and water quality are closely linked. As much as one third of the nitrogen pollution in the Chesapeake Bay is from the emissions of smokestacks and tailpipes that falls from the atmosphere back down into the water, creating low-oxygen “dead zones,” according to the EPA Chesapeake Bay Program.

For this reason, the U.S. Court of Appeals decision this week striking down the Obama Administration’s air pollution rules for coal-fired power plants was a blow not only to lungs and health of citizens, but also to efforts to  clean up the Chesapeake Bay.

The so-called Cross-State Air Pollution Rule was designed to force coal-fired power plants in states that contribute to air pollution in downwind states to install emissions control equipment to curb the release of nitrogen oxides, mercury, and other pollutants. The rule replaced weaker cross-state regulations issued earlier by the Bush Administration, which were also thrown out by the courts.

EPA had been relying on the new air pollution rules to eliminate millions of pounds of nitrogen pollution annually in the Chesapeake Bay, as part of a pollution reduction plan for the Bay that is like a blueprint for saving the nation’s largest estuary.

Now that the air pollution rule has been overturned, EPA and the states that will be hurt by the decision like Delaware, Maryland, and Pennsylvania may have to appeal.  If they fail, EPA and the states will a significant problem: They will have to figure out an alternative way to reduce these millions of pounds of nitrogen pollution annually in the Chesapeake  Bay. That will require even more effort and investment locally.

Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia wrote for the majority in the 2-1 decision that the rule was an example of federal overreach.  “Absent a claim of constitutional authority (and there is none here), executive agencies may exercise only the authority conferred by statute, and agencies may not transgress statutory limits on that authority,” Kavanaugh wrote.

Judge Judith Rogers wrote a scathing dissenting opinion, calling the majority’s decision an “absurdity.”  “To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act, and the court’s settled precedent interpreting the same statutory provisions at issue today,” Rogers wrote.

Coal-fired power companies joined with Texas, Virginia, Ohio, Indiana, Michigan, Mississippi and several other states in challenging the air pollution rules.  New York, Maryland, Delaware, Massachusetts, Vermont, Connecticut and other Eastern states were on the other side, arguing in court for the federal regulations.

“The court decision deals a significant blow to our ongoing efforts to improve the quality of our air in Maryland,” Maryland’s Secretary of the Environment, Dr. Robert Summers, said in a  written statement.  “…Because as much as 70 percent of our air pollution problem comes from upwind states, we need the emission reductions from sources in these states.”

Without these reductions in upwind states, we will be stuck with more pollution in the Bay region.

By Tom Pelton

Chesapeake Bay Foundation

(Photo at top of coal-fired power plant near Clover, Va., by author.)

 

 

 

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