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N.C., Duke win ruling on interstate air pollution

A federal appeals court – ruling Friday on a challenge from North Carolina and electric utilities including Duke Energy – struck down a high-profile Bush administration rule on interstate air pollution.

The ruling by the U.S. Court of Appeals for the District of Columbia Circuit disappointed environmental groups, a rare ally of the administration, and likely delayed further action until a new president takes office.

The court ruled that the Environmental Protection Agency overstepped its authority by instituting the clean-air rule. Citing “more than several fatal flaws,” the court scrapped the entire regulation.

“This is without a doubt the worst news of the year when it comes to air pollution,” said Frank O'Donnell, president of Clean Air Watch, a group that has criticized other Bush administration policies.

The Clean Air Interstate Rule required 28 mostly Eastern states to reduce emissions that form fine particles and ozone, which can travel hundreds of miles on the wind. The EPA had predicted the rule would prevent about 17,000 premature deaths a year.

North Carolina objected to the rule's provision allowing polluters to trade for emission “allowances” earned by low-pollution sources. That would let some upwind facilities avoid updating their pollution controls, the state argued.

“We're pleased that the court has agreed that we need tougher rules to clean up and protect the air we breathe,” N.C. Attorney General Roy Cooper said in a statement. “We'll continue our fight against out-of-state pollution that hurts North Carolina's health and economy.”

The EPA denied an N.C. petition filed in 2004 to force lower pollution limits on 13 upwind states, which Cooper argued were hurting North Carolina's efforts to clean up utility emissions. The state has appealed the EPA denial.

On Monday, a federal judge in Asheville will begin hearing testimony on a more direct approach – North Carolina's lawsuit against the Tennessee Valley Authority. The state claims pollution from TVA's coal-fired power plants in Tennessee, Kentucky and Alabama are a public nuisance that hurt N.C. public health and the environment.

Ryke Longest, director of the Environmental Law and Policy Clinic at Duke University's law school, said it's likely to be years for a new rule to be put into effect. In the meantime, he said, it's likely that other states will also look to the courts to address interstate pollution problems.

Friday's ruling was somewhat of a surprise, even to industry groups that challenged aspects of the law. Most utilities liked the so-called emissions “cap-and-trade” that North Carolina fought, and had invested billions of dollars in preparations for the trading market.

Duke Energy objected, said spokeswoman Tom Williams, because of the low number of emission allowances the rule would give Duke. “Our whole focus was not to overturn CAIR, but to make sure we got the appropriate number of allowances,” Williams said.

The EPA said it was reviewing the 60-page opinion. The Bush administration can appeal the decision, but environmental groups called for Congress and the EPA to begin working quickly on a replacement regulation.

“Literally hundreds if not thousands of people in North Carolina could die prematurely unless the government takes swift and decisive action to clean up power plants emissions,” said June Blotnick, executive director of Charlotte's Carolinas Clean Air Coalition.

The EPA said the rule would have dramatically reduced sulfur dioxide and nitrogen oxide emissions, saving up to $100billion in health benefits. Besides the reduction in premature deaths, the EPA also said the rule would have prevented millions of lost work and school days and tens of thousands of nonfatal heart attacks.

The ruling, along with a court decision issued in February striking down the environmental agency's rule controlling mercury emissions from power plants, means that virtually all new controls imposed on the electric utility industry by the Bush administration have no force.

“The implications are huge,” said Lisa Heinzerling, a professor at Georgetown University Law Center. “This is the administration's major air pollution initiative.”

John Walke, a lawyer with the Natural Resources Defense Counsel, said the Bush administration “has failed to achieve a single ounce in reductions of smog, soot, mercury or global warming pollution from power plants.”

The Associated Press and New York Times contributed.

A federal appeals court – ruling Friday on a challenge from North Carolina and electric utilities including Duke Energy – struck down a high-profile Bush administration rule on interstate air pollution.

The ruling by the U.S. Court of Appeals for the District of Columbia Circuit disappointed environmental groups, a rare ally of the administration, and likely delayed further action until a new president takes office.

The court ruled that the Environmental Protection Agency overstepped its authority by instituting the clean-air rule. Citing “more than several fatal flaws,” the court scrapped the entire regulation.

“This is without a doubt the worst news of the year when it comes to air pollution,” said Frank O'Donnell, president of Clean Air Watch, a group that has criticized other Bush administration policies.

The Clean Air Interstate Rule required 28 mostly Eastern states to reduce emissions that form fine particles and ozone, which can travel hundreds of miles on the wind. The EPA had predicted the rule would prevent about 17,000 premature deaths a year.

North Carolina objected to the rule's provision allowing polluters to trade for emission “allowances” earned by low-pollution sources. That would let some upwind facilities avoid updating their pollution controls, the state argued.

“We're pleased that the court has agreed that we need tougher rules to clean up and protect the air we breathe,” N.C. Attorney General Roy Cooper said in a statement. “We'll continue our fight against out-of-state pollution that hurts North Carolina's health and economy.”

The EPA denied an N.C. petition filed in 2004 to force lower pollution limits on 13 upwind states, which Cooper argued were hurting North Carolina's efforts to clean up utility emissions. The state has appealed the EPA denial.

On Monday, a federal judge in Asheville will begin hearing testimony on a more direct approach – North Carolina's lawsuit against the Tennessee Valley Authority. The state claims pollution from TVA's coal-fired power plants in Tennessee, Kentucky and Alabama are a public nuisance that hurt N.C. public health and the environment.

Ryke Longest, director of the Environmental Law and Policy Clinic at Duke University's law school, said it's likely to be years for a new rule to be put into effect. In the meantime, he said, it's likely that other states will also look to the courts to address interstate pollution problems.

Friday's ruling was somewhat of a surprise, even to industry groups that challenged aspects of the law. Most utilities liked the so-called emissions “cap-and-trade” that North Carolina fought, and had invested billions of dollars in preparations for the trading market.

Duke Energy objected, said spokeswoman Tom Williams, because of the low number of emission allowances the rule would give Duke. “Our whole focus was not to overturn CAIR, but to make sure we got the appropriate number of allowances,” Williams said.

The EPA said it was reviewing the 60-page opinion. The Bush administration can appeal the decision, but environmental groups called for Congress and the EPA to begin working quickly on a replacement regulation.

“Literally hundreds if not thousands of people in North Carolina could die prematurely unless the government takes swift and decisive action to clean up power plants emissions,” said June Blotnick, executive director of Charlotte's Carolinas Clean Air Coalition.

The EPA said the rule would have dramatically reduced sulfur dioxide and nitrogen oxide emissions, saving up to $100billion in health benefits. Besides the reduction in premature deaths, the EPA also said the rule would have prevented millions of lost work and school days and tens of thousands of nonfatal heart attacks.

The ruling, along with a court decision issued in February striking down the environmental agency's rule controlling mercury emissions from power plants, means that virtually all new controls imposed on the electric utility industry by the Bush administration have no force.

“The implications are huge,” said Lisa Heinzerling, a professor at Georgetown University Law Center. “This is the administration's major air pollution initiative.”

John Walke, a lawyer with the Natural Resources Defense Counsel, said the Bush administration “has failed to achieve a single ounce in reductions of smog, soot, mercury or global warming pollution from power plants.”

The Associated Press and New York Times contributed.

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