EPA Cross-State Air Pollution Rule about coal abolished by US Court of Appeals

2012-08-21 "240 Million Americans to Lose Protections From Coal Pollution; US Court Throws Out EPA Coal Pollution Rule, Leaves Millions Exposed to Harmful Emissions" from "Common Dreams" online newsjournal
[http://www.commondreams.org/headline/2012/08/21-3]:
Up to 240 million Americans will now lose protections against dangerous smog and soot pollution, following a decision by a US appeals court on Tuesday. In a 2-1 decision the US Court of Appeals for the D.C. Circuit overturned the Environmental Protection Agency's Cross-State Air Pollution Rule, which would have reduced harmful emissions from coal-burning power plants and saved the lives of up to 34,000 people per year [http://www.commondreams.org/newswire/2012/08/21-0].
“This decision allows harmful power plant air pollution to continue to aggravate major health problems and foul up our air. This is a loss for all of us, but especially for those living downwind from major polluters,” said John Walke, clean air director at the Natural Resources Defense Council [http://www.commondreams.org/newswire/2012/08/21-0].
The rule, slated to reduced sulfur dioxide emissions by 73 percent and nitrogen oxide by 54 percent at coal-fired power plants from 2005 levels in 28 states, will now be sent back for revision for an indefinite period of time.
The EPA had adopted the regulation one year ago in a bid to reduce downwind pollution from power plants across state lines [http://news.yahoo.com/court-overturns-border-crossing-pollution-rule-145230849.html]. It was scheduled to go into effect in January; however, several large power companies and some states sued to stop it.
“This rule would have prevented thousands of premature deaths and saved tens of billions of dollars a year in health costs, but two judges blocked that from happening and forced EPA to further delay long overdue health safeguards for Americans,” Walke stated.
According to the Environmental Defense Fund, the rule would have [http://www.edf.org/news/deeply-divided-court-blocks-vital-clean-air-protections-millions]:
* Saved up to 34,000 lives each year
* Prevented 15,000 heart attacks each year
* Prevented 400,000 asthma attacks each year
* Provided $120 billion to $280 billion in health benefits for the nation each year


2012-08-20 "No Person Shall Be Deprived of Life, Liberty or Property… Unless the Oil and Gas Industry Says So" by Alison Grass from "Food & Water Watch"
[http://www.foodandwaterwatch.org/blogs/no-person-shall-be-deprived-of-life-liberty-or-property-unless-the-oil-and-gas-industry-says-so/]:
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Eminent domain, the government’s right to condemn (or take) private land for “public use,” has at times been a highly contentious topic because it can displace people from their homes to make way for construction of different projects, like highways or roads, civic buildings and other types of public infrastructure. However, what some may not realize is that several states have granted eminent domain authority to certain private entities, including oil and gas companies. These companies are using it as a tool to seize private land, which increases profits and benefits their wallets.
According to the U.S. Constitution’s Fifth Amendment, in order to pursue eminent domain, the land must be taken for “public use” and the private property owners must receive “just compensation.”
No person shall be . . . deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Traditionally, the “public use” provision referred to projects like roads, schools, parks and other public facilities that could be directly used by all. However, the meaning of “public use” has been loosely interpreted in recent years.
The controversial Kelo v. City of New London (2005) is credited with broadening the interpretation of “public use.” In this case, the Supreme Court ruled in favor of New London, deciding that the city could take private property and give it to another private entity for “economic development.” The Court decided that this met the “public use” provision of the Fifth Amendment. But despite taking the land and spending millions of taxpayer dollars on the proposed project, the plan never came to fruition and nothing was constructed.
Now it seems that the oil and gas industry is capitalizing on this this precedent-setting case.
A University of Minnesota Law professor describes this trend: “in many natural resource–rich areas of the country, however, the knock on the door is less likely to come from a government official and much more likely to come from a mining, oil, or gas company representative.”
The state legislature of North Carolina recently legalized fracking. Yet, what some residents may not know is that North Carolina’s eminent domain law allows some private entities to take private property for certain uses. This includes oil and gas companies who have been given the right to condemn land and construct pipelines for natural gas transportation. As a supervising attorney at the Duke Environmental Law and Policy Clinic points out, there could be even bigger implications. “If private companies engaged in these activities are designated as ‘public enterprises,’ then they may be able to take private property for purposes far beyond that of laying pipelines.”
In July, the Pennsylvania Commonwealth Court ruled that provisions in Act 13, (which revised the Oil and Gas Act of 1984), aiming to prevent local zoning rules for gas drilling and fracking were unconstitutional. However the Court didn’t rule on the topic of eminent domain. This leaves open the possibility that oil and gas companies could pursue this as a method to take people’s land.
Meanwhile in Texas, TransCanada, the company that wants to build the Keystone XL Pipeline, is trying to grab private property from a small town, claiming they have eminent domain rights—and some residents are outraged.
The Kelo case broadened the interpretation of the “public use.” The city of New London took land from a private property owner so that they could give it to a private entity in the name of “economic development.” Unfortunately, oil and gas companies will now have this card to play when justifying land grabs.