On Oct. 23, 2014, the U.S. Court of Appeals for the D.C. Circuit granted U.S. EPA’s June request to lift the stay on the Cross-State Air Pollution Rule (CSAPR or Transport Rule).

Under the Transport Rule, upwind states, including Indiana, Kentucky and Ohio, are required to significantly reduce power plant emissions that contribute to ozone and/or fine particle pollution in downwind states.

Brief Transport Rule History

The stay was issued in December 2011 while the D.C. Circuit heard litigation over the Transport Rule in EME Homer City Generation, L.P. v. EPA. In its August 2012 ruling on EME Homer City Generation, the D.C. Circuit invalidated the Transport Rule stating that the rule exceeded U.S. EPA’s Clean Air Act authority. In April 2014, the Supreme Court reversed the D.C. Circuit’s ruling, reinstating the Transport Rule. 

In its June 26, 2014, motion, U.S. EPA requested that the court lift the stay of the Transport Rule and delay the Transport Rule compliance deadlines by three years, so the first emissions budgets of the rule would apply in 2015 (rather than 2012 and 2013).

What's Next?

Although the Oct. 23 order granted U.S. EPA’s request that the stay be lifted, it did not explicitly grant U.S. EPA’s request to delay the Transport Rule compliance deadlines by three years.

The order also established a briefing deadline for the remaining lawsuits to be resolved which address specific provisions of the Transport Rule. The initial briefs are due Dec. 10, 2014, for industry and states opposed to the rule.