Cases & Deals

South Carolina Electric & Gas participates in case quashing EPA rule on sulfur dioxide emissions

Clients South Carolina Electric & Gas Company

Ruling in favor of Jones Day client South Carolina Electric & Gas Company and other power company petitioners, the U.S. Court of Appeals for the D.C. Circuit has struck down a Clean Air Act rule for sulfur dioxide emissions. The rule would have required utilities to surrender sulfur dioxide allowances previously granted for such emissions under Title IV of the Clean Air Act.

The utilities group challenged the Clean Air Interstate Rule (CAIR) as beyond the statutory authority that Congress granted to the Environmental Protection Agency (EPA) to regulate sulfur dioxide emissions. In a per curiam opinion issued on July 11, 2008, the Court agreed: "Lest EPA forget, it is a 'creature of statute' and has 'only those authorities conferred upon it by Congress' . . . . [N]o statute confers authority on EPA to terminate or limit Title IV allowances, and EPA thus has none." Slip op. at 44-45 (citations omitted).

The Court further agreed that EPA's use of Title IV allowances, based on data collected in 1985-87, as a starting point for the additional sulfur dioxide reductions required under CAIR was an "arbitrary . . . baseline" that had no basis in the statute. Slip op. at 35-36.

North Carolina v. EPA, et al., No. 05-1244 (D.C. Cir.)