Supreme Court Will Hear Appeals Of Cross State Air Pollution Rule

Jun 24: The U.S. Supreme Court agreed to hear the controversial cases challenging the D.C. Circuit's decision to vacate U. S. EPA's Cross State Air Pollution Rule (CSAPR) and leave in place the existing Clean Air Interstate Rule (CAIR) pending EPA's further action. On August 21, 2012, the Appeals Court, in a split 2-1 decision, dealing with U.S. EPA's controversial CSAPR, vacated the Transport Rule and the Transport Rule FIPs and remand the proceeding to EPA [See WIMS 8/21/12]. On January 24, 2013, the D.C. Circuit denied a request by EPA and others for an en banc (full panel) rehearing of the case [See WIMS 1/24/13]. The High Court, in its order to hear the case said specifically, "The petitions for writs of certiorari are granted limited to the questions presented by the petition in No. 12-1182. The cases are consolidated and a total of one hour is allotted for oral argument."

 

    The two petitions granted were: Environmental Protection Agency, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1182), and American Lung Association, et al., Petitioners v. EME Homer City Generation, L.P., et al. (No. 12-1183).

 

    According to the EPA petition, the questions presented are: (1) Whether the court of appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief; (2) whether states are excused from adopting state implementation plans prohibiting emissions that "contribute significantly" to air pollution problems in other states until after the EPA has adopted a rule quantifying each state's inter-state pollution obligations; and (3) whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind state's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state's physically proportionate responsibility for each downwind air quality problem.

    Howard Learner, Executive Director of the Environmental Law & Policy Center (ELPC) said, "The U.S. Supreme Court is likely taking this case in order to reverse the D.C. Circuit panel's decision that is contrary to law and would further delay long-needed clean air standards necessary to protect our public health.  The Supreme Court has twice upheld EPA's statutory responsibility to reduce dangerous air pollution.  The D.C. Circuit panel's ruling is contrary to consistent Supreme Court decisions and should be reversed. We believe that the Supreme Court will uphold the EPA's scientific and technical expertise in moving forward to clean up the air we breathe, reduce asthma and protect public health, especially for children and the elderly."

    The American Lung Association (ALA) issued a brief statement saying it applauds the decision by the U.S. Supreme Court to hear the appeal by the U.S. Environmental Protection Agency on the Cross State Air Pollution Rule. "This Rule follows the 'good neighbor' principle established in the Clean Air Act to cut pollution that spreads across the borders of 28 eastern states. For too long, ozone smog and particle pollution have traveled far from their sources, threatening lives and health across far away state borders. If the Court upholds the Cross State Air Pollution Rule, these protections would save up to 34,000 lives each year. We look forward to sharing with the Court information about the health benefits of this important decision."

    Environmental Defense Fund (EDF), the American Lung Association, the Clean Air Council, Natural Resources Defense Council, and the Sierra Club. Other parties filed briefs in support of EPA's request, including numerous states and cities that are adversely affected by interstate pollution, and two major power companies. the Supreme Court decision means the High Court will hear an appeal of the lower court's decision during its next term, which begins in the fall. EDF general counsel Vickie Patton said, "This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants."

    Access the order (click here, page 6). Access the SupCt dockets (click here) and (click here). Access the SCOTUS blog for No. 12-1182 (click here). Access the SCOTUS blog for No. 12-1183 (click here). Access the ELPC statement (click here). Access the statement from ALA (click here). Access a release from EDF (click here). Access EPA's CSAPR website for background and further details (click here). [#Air]

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