Appellate judges at Jan. 16 oral argument appeared skeptical of EPA's attempt to downplay the impact of a 2019 ruling faulting its interstate emissions policy in separate litigation two states are pursuing over the agency's denial of Clean Air Act petitions urging the agency to directly regulate air pollution from sources in upwind states. The U.S. Court of Appeals for the District of Columbia Circuit ruled in September 2019 in State of Wisconsin v. EPA to remand the agency's Cross-State Air Pollution Rule (CSAPR) utility interstate emissions trading program after faulting it. EPA relied on CSAPR in part to justify its denials of the petitions at issue in the instant litigation, filed by Maryland and Delaware under Clean Air Act section 126(b), which allows states to seek EPA regulation of out-of-state sources. The two states claim that the ruling is central to their section 126 lawsuit, State of Maryland, et al. v. EPA, et ai, because the decision undermines the agency's reasons for denying the petition.
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