Court Blocks Another EPA Smog Rule

By H. Josef Hebert
Copyright 1999 Associated Press
May 26, 1999

A federal appeals court today ordered the Environmental Protection Agency to suspend implementation of a rule requiring 22 states to take measures that control interstate movement of smog-causing pollution.

The court decision, pending consideration of a lawsuit challenging the rule, is the second blow against a major EPA air pollution regulation in two weeks. The same appeals court turned back the EPA's smog and soot regulation on May 14.

The action today by a three-judge panel of the U.S. Court of Appeals for the District of Columbia directs the EPA to stop implementing the regulation, pending consideration of a lawsuit that had challenged the requirements.

As a result, the 22 states, from Michigan to Maine, will not be required to submit plans in September that would describe in detail how they intend to reduce the interstate transport of pollution. The actual pollution reductions are not expected to be required until 2003 and in some cases 2005.

It's not certain how the ruling will affect eventual implementation of the rule, even if the EPA turns back the legal challenge. The EPA said in a statement that the court's action was a ''procedural delay.''

The lawsuit challenging the rule was filed by several Midwest states and a number of utilities that operate coal-burning power plants in the Midwest and Ohio Valley.

The tougher emission controls, announced by the EPA last October, would most greatly affect coal-burning power plants in the Ohio Valley and Midwest. Environmentalists have argued those plants produce large amounts of nitrogen oxide that eventually drifts to the Northeast as smog, making it difficult for those states to comply with federal air quality standards.

Some of the Midwest states and the utilities have argued that the long-range transport problem has been exaggerated.

The appeals court said it was granting a partial stay of the regulation so states would not have to meet the September deadline for submitting implementation plans, pending a further order by the court.

The case is being heard by Judges Douglas H. Ginsburg, Stephen F. Williams and Judith W. Rogers. Ginsburg and Williams both were on the three-judge panel that on May 14 overturned the EPA's regulation requiring tougher controls on soot and smog. That decision is expected to be appealed by the Clinton administration.

Responding to today's ruling, the EPA said in a statement that ''this is a procedural delay to allow all parties to argue their case'' that ''temporarily delays these important health protection for the American people.''

''The Environmental Protection Agency and a number of states will argue before the court the need to move forward with these important public health potations,'' the agency continued.

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