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Pa. stands in middle of Clean Air battle

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Pennsylvania is geographically in the middle of a fight before the Supreme Court over interstate air pollution regulations.

The state's concentration of coal-fired and natural gas-fired power plants makes it an “upwind” state that the Environmental Protection Agency says has to reduce its emissions so that states to the east can meet their pollution limits.

But Pennsylvania, particularly Western Pennsylvania, is “downwind” from power plants in Ohio and other states, whose emissions make it hard for the region to meet its pollution limits, said Joe Osborne, legal director for the Pittsburgh-based Group Against Smog and Pollution.

“Sure, we generate a lot of it ourselves, but we also receive a lot from other places,” he said.

While states struggle with pollution from their neighbors, the EPA for more than a decade has struggled to come up with regulations that can withstand court challenges.

“One of the things that the Clean Air Act does not do terribly well is deal with pollution that travels great distances and goes from state to state,” said Joe Minott, executive director of the Philadelphia-based Clean Air Council.

Pending before the Supreme Court is the EPA appeal of a lower court decision that struck down an August 2011 regulation requiring 28 upwind states including Pennsylvania to reduce sulfur dioxide and nitrogen oxide emissions.

A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit in August 2012 decided, 2-1, that the EPA exceeded its authority in telling each state how much it has to reduce emissions and how to do it.

The EPA, in its appeal to the Supreme Court, claims that the lower court exceeded its authority by ignoring or rewriting provisions of the Clean Air Act and basing its rulings on issues that the upwind states and power industry didn't raise in their appeal.

The Supreme Court expects to issue a ruling early this year.

Minott said that if the Supreme Court upholds the lower court ruling, it will probably take the EPA another four to five years to write a new regulation. The EPA developed the 2011 regulation when the D.C. Circuit in 2005 struck down an earlier proposal.

Jayme Graham, acting air quality program manager for the Allegheny County Health Department, said the county hoped the 2011 regulation would reduce pollution here.

Even though the court struck down the regulation, the county should still be able to meet its air pollution limits because of trends in the electric power industry, Graham said, one being that companies are shutting down their older, mainly coal-fired power plants. GenOn Energy Inc. of Houston, Texas, in October shut down the Elrama coal-fired power plant in Washington County.

“That was the one that was affecting us the most,” Graham said.

FirstEnergy Corp. of Akron, Ohio, has shuttered the Mitchell coal-fired power station, in Washington County. It was a significant contributor to Allegheny County's pollution problems, she said.

Another factor in reducing sulfur dioxide in Pittsburgh's air is that most coal-fired power plants are installing controls to meet a new federal limit on mercury emissions.

“That makes a lot of difference for particulates,” Graham said.

Gov. Tom Corbett on Dec. 10 joined officials from eight other states in petitioning the EPA to require nine upwind states to reduce their ozone emissions so that Pennsylvania and the other petitioners can breathe easier.

“Our hope is that the EPA will level the playing field by ensuring other states are being good neighbors by abiding to the same standards we have in Pennsylvania,” Corbett said in a prepared statement.

Corbett's office referred questions about the case to the Department of Environmental Protection, which declined comment. Pennsylvania hasn't joined either side in the Supreme Court case.

In setting the limits, the EPA utilized the two-step process it used to craft two previous interstate pollution regulations.

First, it identified which states were sending air pollutants across their borders that were at or above 1 percent of the national limits. Second, it used a cost-benefit analysis to decide how much the plants in each upwind state would have to spend to reduce their emissions.

The appeals court ruled that second step violated the “Good Neighbor” statute of the Clean Air Act because it would require some states to reduce emissions out of proportion to the problems they were causing downwind.

Brian Bowling is a staff writer for Total Trib Media. Contact him at 412-325-4301 or bbowling@tribweb.com.

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