The U.S. Environmental Protection Agency must regroup from a stunning court setback to its effort to get the latest pollution-control technology installed on aging coal-fired power plants in the Midwest and the South, including several in Ohio and Michigan.
Unless it prevails in front of the U.S. Supreme Court, the agency likely will not be able to impose a rule it wrote last year to achieve further cutbacks in acid rain and smog in 28 states. A federal appeals court panel in Washington, D.C., overturned the rule last week.
The EPA is under a court order to address pollution that is drifting to the Northeast and Canada. Bad air makes breathing harder for millions of people in some of America's biggest cities and degrades pristine rivers, lakes, and forests.
The rule the appeals court rejected affects Ohio, one of the nation's largest sources of power-plant emissions and one of the states in which asthma is most prevalent. The EPA sought to reduce emissions of sulfur dioxide, which causes acid rain, and nitrogen oxide, which causes smog, by 73 percent and 54 percent respectively from 2005 levels starting in 2014.
The agency claimed that change would have prevented 34,000 premature deaths, 15,000 heart attacks, and 400,000 cases of asthma annually. That would have saved $280 billion a year in health costs for an $800 million annual investment in pollution control by industry, the EPA said.
The proposed air-pollution rule was part of an Obama Administration initiative to make dirty power plants operate more cleanly. Utilities cried foul.
Two judges appointed to the appeals court by former President George W. Bush voted to reject the rule. The dissenting judge, appointed by former President Bill Clinton, accused his colleagues of "trampling" on the court's legal authority and said the panel was "blindsided by arguments raised for the first time."
The majority judges said the EPA had an obligation to let states try to achieve results on their own, rather than by a federal mandate. Congress could revisit the issue, but no new bill is likely to emerge before the November election.
The exercise of states' rights, which the judges cited, is not always the best way to get results when multiple industrial smokestacks in multiple states spew pollutants into the atmosphere. The EPA wrote the rejected rule to fix a Bush administration clean-air rule, which a court ordered the agency in 2008 to improve.
It's hard to see what message courts are now giving the EPA, other than "try something else." Many utilities prefer the flexibility of a cap-and-trade system that would allow the sale of pollution credits, to let the market decide which areas get controls installed first. But the appeals court said that approach would cause some facilities to bear more than their fair share of improvements.
The losers from last week's ruling will be Americans who suffer the health consequences of dirty air.