In a landmark win for the EPA, the U.S. Supreme Court has upheld the agency’s cross-state air pollution rule [US]

In a major victory for the Obama Administration, the Supreme Court has reversed a lower appellate court and upheld the Cross-State Air Pollution Rule (CSAPR). CSAPR limits NOx and S02 emissions in upwind states to address ozone, particulate matter, and other pollution problems in downwind states. Pursuant to the Clean Air Act’s “good neighbor” provision, EPA has the authority to regulate interstate pollution that interferes with the country’s ability to maintain or achieve national ambient air quality standards (NAAQS). The rule pits Midwest power producing states against east coast states, as emissions from the Midwest drift over state lines to the eastern seaboard, causing states to violate NAAQS.

EPA has been trying to implement the good neighbor provision since 1998. In 2005, EPA issued the Clean Air Interstate Rule (CAIR), but it was tossed by federal judges in 2008 for not doing enough to protect public health. CAIR was left in place while EPA re-drafted the rules. In 2011, EPA finalized CSAPR, limiting power plant emissions from upwind states. CSAPR detailed a two-step process for addressing air pollution from upwind states that impacted downwind states’ compliance with NAAQS: first, EPA screened states to determine that they contributed more than 1 percent to a downwind state exceeding EPA air standards; if a state met this criteria, EPA used a cost allocation to determine how much that upwind state could reduce its emissions. The agency would then impose “budgets” on the upwind states through a federal implementation plan, or FIP. The FIP will specify the amount of emissions an upwind state can cost-effectively reduce in an efficient and equitable manner.

CSAPR was thrown out in 2012 by the D.C. Circuit, who ruled that by imposing a FIP on states without first allowing the state to develop its own state implementation plan (SIP), CSAPR exceeded the scope of the Clean Air Act. The appeals court also held that EPA improperly relied on a cost analysis in determining how much states must cut emissions, rather than tying emission cuts in upwind states directly to the amount of emissions that state caused downwind.

On appeal to the Supreme Court, Justice Ruth Bader Ginsburg, with the support of five other justices, wrote that the Clean Air Act does not require EPA to allow states another chance to draft a SIP after EPA found the state’s good neighbor plans inadequate. In addition, the Clean Air Act does not tell EPA what factors to consider in implementing the good neighbor provision, and as such, the Court must defer to the agency in interpreting the statutory language. The Court will “read Congress’ silence as a delegation of authority to EPA to select from among reasonable options.”

In a dissenting opinion, conservative Justices Antonin Scalia and Clarence Thomas agreed with the D.C. Circuit opinion and wrote that the Clean Air Act requires upwind states to only cut the proportional amount of emissions that they contribute to downwind states.

EPA claims that once the rule is fully implemented, CSAPR will significantly improve deaths, heart-attacks, and hospital admissions that are the result of ozone and fine particulate matter exposure.

Source:
EPA v. EME Homer City Generation, L.P., S. Ct. No 12-1182, Slip Opinion decided April 29, 2014 (http://www.supremecourt.gov/opinions/13pdf/12-1182_bqm1.pdf)
Jeremy Jacobs, EPA wins big as Supreme Court upholds cross-state rule, E&E Greenwire, April 29, 2014
Laura Barron-Lopez, Court upholds cross-state air pollution rule, The Hill, April 29, 2014 (http://thehill.com/regulation/energy-environment/204658-supreme-court-upholds-epa-cross-state-air-pollution-rule)

Red-on-line EHS Legal Counsel