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EPA Finalizes Long-Awaited Transport Rule to Replace CAIR...

July 18, 2011 On July 6, 2011, the U.S. Environmental Protection Agency ("EPA") issued its final Cross-State Air Pollution Rule ("CSAPR" or "Final Rule") pursuant to Section 110(a)(2)(D)(i)(I) of the Clean Air Act, 42 U.S.C. 7410(a)(2)(D)(i)(I). 1 The CSAPR requires significant reductions of emissions of sulfur dioxide ("SO2") and nitrogen oxide ("NOx") from power plants in 27 states in the eastern half of the U.S. that, according to the EPA, contribute to "downwind" ozone or fine particle pollution in other states. The EPA estimates that the CSAPR will achieve a 73% reduction in SO2 and a 54% reduction in NOx power plant emissions from 2005 levels in the covered states. The CSAPR is available on the EPA's website, at http //www.epa.gov/airtransport/pdfs/TR 070611 WEB.pdf, but has not yet been published in the Federal Register. The CSAPR was initially proposed on July 6, 2010 and was generally referred to as the Transport Rule. The CSAPR replaces the EPA's 2005 Clean Air Interstate Rule ("CAIR"), which the U.S. Court of Appeals for the D.C. Circuit invalidated in North Carolina v. Environmental Protection Agency, 531 F. 3d 896 (D.C. Cir. 2008), modified on rehearing, 550 F. 3d 1176 (D.C. Cir. 2008) based on the court's finding that the program had "fatal flaws." More specifically, the D.C. Circuit ruled that According to the Clean Air Act,2 the EPA must achieve "something measurable toward the goal of prohibiting sources within the State' from contributing to nonattainment or interfering with maintenance in any other State.'"3 To do so, the EPA must measure each individual state's significant contribution to a downwind state's nonattainment.4...

As noted in the CSAPR, this provision of the Clean Air Act requires states to prohibit emissions that contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to primary or secondary National Ambient Air Quality Standards ("NAAQS"). 42 U.S.C. 7413(a)(2)(D)(i)(I). North Carolina v. EPA, 531 F.3d at 907. Id. at 908....

This memorandum has been prepared by Cadwalader, Wickersham & Taft LLP for informational purposes only and does not constitute advertising or solicitation and should not be used or taken as legal advice. Those seeking legal advice should contact a member of the Firm or legal counsel licensed in their state. Transmission of this information is not intended to create, and receipt does not c...

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