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EPA rule on air pollution struck down

A federal appeals court swept aside a key pillar of Maryland's plan to reduce soot and smog on Tuesday when it struck down a federal rule aimed at limiting air pollution crossing from one state to another.

Maryland has moved aggressively to cut emissions from coal-burning power plants that officials say contribute to serious health problems such as asthma, heart attacks and premature death. But up to 70 percent of the pollution fouling the state's air comes from upwind states, according to Robert M. Summers, Maryland secretary of the environment.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia said the Environmental Protection Agency overstepped its authority with the so-called Cross-State Air Pollution Rule, also known as the "good neighbor rule."

"The court ruling vacating EPA's [rule] is very disappointing," Summers said in a statement. "Maryland was among a group of states that intervened in the court case to defend the rule. The court decision deals a significant blow to our ongoing efforts to improve the quality of our air in Maryland."

Maryland has the toughest power plant emission law on the East Coast in the Maryland Healthy Air Act, plus its Clean Cars Program adopting stricter vehicle emission standards, but could have trouble meeting its pollution reduction goals without federal intervention, Summers said.

Under the EPA rule, power plants across the eastern United States would have been required to reduce sulfur dioxide emissions 73 percent and nitrogen oxide 54 percent from levels in 2005, when a Bush administration emissions rule was put into effect.

The state Healthy Air Act of 2006 requires the state's power plants to reduce nitrogen emissions almost 70 percent and sulfur dioxide and toxic mercury by 80 percent.

Summers said officials are reviewing the decision and would discuss with the EPA an appeal or other moves.

The court's decision was cheered by some states and many energy interests, who said the EPA rule was too burdensome. They argued that there are adequate protections already in place or that states should be left to devise their own programs. Some also questioned the effect on power production and the cost to consumers and businesses.

The EPA had estimated the cost at $800 million a year to retrofit plants with pollution reduction equipment, though officials estimated the health care savings would be many times more.

"The court was clear in finding that EPA had overstepped its legal authority in developing the rule," said Scott Segal, director of the Electric Reliability Coordinating Council, a coalition of utilities and energy companies, in a statement. "EPA has not showed sufficient respect or deference to state programs. Today's decision is a stern warning against EPA's recent views."

The court said the EPA was directed by clean-air laws to limit sulfur dioxide and nitrogen oxide emissions from power plants in 28 states, most of them in the East.

In a split decision, the court found the EPA surpassed that mandate and imposed "massive emission reduction requirements" on states. "By doing so, EPA departed from its consistent prior approach to implementing the good neighbor provision and violated the" Clean Air Act, wrote Judge Brett Kavanaugh in the court's opinion.

Some Maryland lawmakers and environmental advocates slammed the decision.

"It doesn't take a scientist to understand that air pollution doesn't stop at a state borderline," said U.S. Sen. Ben Cardin, a Democrat who is a member of the Senate Environment and Public Works Committee, in a statement. "Despite today's court decision, the need to address cross-state air pollution remains as urgent as ever. Maryland, despite having some of the strictest clean-air rules in the country, continues to suffer from dirty air — and the resulting harm to public health — because of pollution from other states."

And Frank O'Donnell, president of the nonprofit watchdog group Clean Air Watch, said, "The good neighbor rule is critical component in the EPA's strategy to ensure healthful air quality. … This decision does not eliminate the need to reduce dangerous air pollution that blows across state lines."

O'Donnell said the Obama administration could appeal to the full court of appeals or the Supreme Court but should work on alternative strategies to reduce pollution.

"The health of breathers in downwind states depends on limiting pollution from upwind states," he said.

Meredith.cohn@baltsun.com

Reuters contributed to this article.

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