The Supreme Court issued a major environmental opinion yesterday, reinstating an EPA rule designed to tackle cross-state air pollution. The case is EPA v. EME Homer City Generation L.P. (12-1182). The Clean Air Act authorizes the agency to create national ambient air quality standards that limit the amount of pollutants in the air. The Act allows the states to create plans to meet the EPA standards. States must take into account cross-state pollution in creating those plans. The EPA can implement a federal plan if a state’s plan is inadequate or untimely. A state has three years to submit a plan. The EPA has two years after rejection of the state plan to submit its own.
The rules implementing the Clean Air Act were challenged by various industry, state, and labor groups, particularly in the way they handled cross-state pollution. The Court acknowledged the difficulty of crafting a rule that attacked the problem within the authority of the Act. States could be up-wind generators of pollution, down-wind receptors, or both.
The EPA tackled the issue by creating pollution budgets for each state limiting the amount of pollutant they could generate within a year. The agency issued federal implementation plans for states where it found state plans inadequate to meet pollution targets. The Court of Appeals for the District of Columbia vacated the rules as beyond the authority conferred by the Clean Air Act. The D.C. Court concluded that the EPA needed to give guidance to the states in constructing their plans. That Court further took issue with the rule in that the EPA considered cost considerations as part of the calculation. It determined that the rule should only take into account each state’s proportional contribution to cross-state pollution.
The Supreme Court reversed. It held that the plain language of the statute did not require the EPA to give guidance to the states. The Court also held that the use of cost to determine plan details was equitable to the states and within the statutory authority under the statute.
The opinion is 32 pages long. As such, I’m leaving out a lot of detail here that the Court used to support it’s decision. There are going to be a lot of industry people who are going to be very unhappy with the ruling. I would expect some criticism for Chief Justice Roberts as he joined in the opinion. Justice Ginsburg delivered the opinion of the Court and was joined by Justices Kennedy, Breyer, Sotomayor, and Kagan in addition to the Chief Justice. Justice Scalia filed a lengthy dissenting opinion and was joined by Justice Thomas. Justice Alito did not participate in the case. — Mark