Supreme Court to Review EPA’s Cross State Air Pollution Rule

By: Brian Bayne

Earlier this summer, the Supreme Court issued decisions from its April session. In all of the excitement of the landmark decisions, the Court’s announcement of the cases it will hear in its next session was overlooked.  The little attention that was given to the upcoming cases was mostly focused on Noel Canning v. NLRB, a case challenging the president’s recess appointment powers.  However there were other cases that will have a major impact on the way our government operates.

One of these cases is EPA v. EME Homer City Generation, L.P..  This case is an appeal by the EPA to overturn a D.C. Circuit court decision to vacate the EPA’s Cross State Air Pollution Rule (CSAPR); a rule regulating air pollution that crosses state boundaries.  This case is important because it is the second time in two attempts that a rule promulgated by the EPA addressing cross state air pollution has been vacated by the D.C. Circuit, making it apparent that some guidance from the Supreme Court is necessary to define what authority the EPA has to regulate cross state air pollution under the Clean Air Act.

Before delving into what the Court should rule in this case, it is important to understand what CSAPR is and under what authority the EPA claims it has to promulgate it.  In 1990, Congress passed major amendments to the Clean Air Act to address a growing concern of air pollution that crosses from one state into another.  Congress strengthened what is known as the Good Neighbor provision that requires any state to reduce its emissions if it significantly contributes to air pollution in a downwind state.  What complicates the process is that Congress did not simply charge the EPA to regulate this pollution or simply charge the states to regulate the pollution, but rather created a system of cooperative federalism.  Cooperative federalism gives the states the first opportunity to solve the problem and then allows the EPA to create regulations if the states fail, or if the state simply does not submit a complete emission reduction plan within three years of the EPA calculating the minimum air quality standards for certain pollutants.  Under CSAPR, the EPA determined which states were noncompliant with their Good Neighbor provision obligations and calculated the amount of emissions each state needed to reduce to be compliant.  Further, the EPA created an implementation plan mandating how states must address their noncompliance because it had been more than three years since the EPA had promulgated air quality standards.  This plan required states to cut emissions from power plants emphasizing a cut in emissions from coal-fired plants.

Following the promulgation of CSAPR, industry groups as well as several states sued the EPA, claiming CSAPR exceeded the EPA’s statutory authority under the Clean Air Act.  They believed that CSAPR was flawed in two independent ways: (1) the emission reduction requirements were too great and (2) the EPA did not allow states the opportunity to create their own implementation plan after the EPA calculated each states’ Good Neighbor Provision obligation.  The D.C. Circuit ruled in favor of the petitioners on both counts and vacated CSAPR.  Despite the fiery dissent written by Judge Rogers, arguing that the industry groups lacked standing to challenge CSAPR, the EPA’s petition for review of the decision en banc was denied by the D.C. Circuit.

When the US Supreme Court hears this case next session I believe the correct ruling is to reverse the decision of the D.C. Circuit Court and uphold CSAPR.  The decision should be reversed because the petitioners that challenged CSAPR did not have standing to challenge the rule.  The Clean Air Act limits the time period to file for judicial review of an EPA regulation to 60 days.  While the petitioners did file a complaint within 60 days of CSAPR being promulgated, this was still too late to challenge the EPA’s decision to create implementation plans for the state.  The proper time to file a complaint would have been within 60 days of the EPA announcing that the states failed to create adequate state implementation plans. The Clean Air Act also limits judicial review to issues that were raised with reasonable specificity during the public comment period.  In the case at hand, industry groups did not raise the issue that the emission reductions were too great and therefore waived their ability to raise that complaint in judicial review.  Because the petitioners did not properly bring their complaint before the court, the Supreme Court should reverse the D.C. Circuit’s decision and uphold CSAPR.

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