July 22, 2013

Downwind States Deserve Protection: Supreme Court’s Review of Decision Gutting Cross-State Pollution Protections Right on Point

Last month, the U.S. Supreme Court granted certiorari, or review of  EME Homer City Generation v. EPA, 696 F.3d 7 (D.C. Cir. 2012), reh’g en banc denied, 2013 WL 656247 (D.C. Cir. Jan. 24, 2013). This is a welcome development, as the D.C. Circuit Court of Appeals got many things wrong in its tossing out of the Cross State Air Pollution Rule (CSPAR), the follow-up to the previously invalidated Clean Air Interstate Rule (CAIR) which regulated potential cross-state air pollution. For example, although an oil refinery one state may meet its own air quality, but not in state nearby where it might be polluting neighboring cities. CSPAR would hold states accountable for their pollution of their neighbors, which the D.C. Circuit Court of Appeals tossed out last year.

This case was brought to the D.C. Circuit on consolidated challenges to the EPA’s attempt to implement the CSPAR. Basically, the rule and its pieces and subsidiaries were designed to ensure that the states did not cause significant “interference” with “maintenance” of National Ambient Air Quality Standards (NAAQS) in downwind states. (This has also been referred to as the “good neighbor provision,” or Section 110(a)(2)(D) of the Clean Air Act). The problem of interstate transport of major air pollutants has become more apparent over the last 15 years, and it has become obvious that many states will never be able to meet the safe levels of air pollution within their own borders without controlling the pollution from other states, which the EPA is required to do. The complexity of the issue and whether and how the EPA will deal with it has been the subject of litigation since 1998. This rulemaking was the culmination of an attempt to create a systematic approach to dealing with the problem.

The Court of Appeals held for some of the plaintiff states and industry and overturned CSAPR because: 1) it claimed that the EPA’s plan improperly failed to reduce only an upwind state’s share of contributions to a downwind state’s nonattainment; and 2) the EPA erred in simultaneously implementing a Federal Implementation Plan (“FIP”) instead of allowing the states to first propose a State Implementation Plan or SIP that would reduce the EPA-determined significant contribution to downwind states.

There was also disagreement between the majority and the vigorous dissent by Judge Rogers concerning whether or not much of the legal basis for the decision was actually before the court. Specifically, whether the challengers had preserved the issues for appeal concerning distinctions between the threshold calculation of significant contribution and reduction calculation, and whether or not the states’ had waived the right to challenge disapproval of earlier SIPs which failed to adequately implement 110(k). This is an important question, mishandled by the majority.   These repose provisions exist for a very important reason. In this case, they are critical to whether and how the EPA and the states are able to effectively protect the public health and welfare. The time to challenge the EPA determination was after the states failed to adequately control interstate contributions and the EPA disapproved the state plans, not three years after the EPA has painstakingly crafted a new plan.

Once it reached the merits, the majority misstated and misapplied the law. In particular the majority stated that it would be the states’ violations of their good neighbor provisions would be “impossible-to-know,” eliminating the Clean Air Act’s provision that the states themselves bear the responsibility of implementing the SIPs and doing so correctly. The majority claims that it would be impossible to have a SIP with adequate good neighbor provisions unless the EPA had first set budgets for each upwind state. This is untrue.

As noted by the dissent, the states themselves have sophisticated environmental agencies that can have access to information about production, modeling, and transport of pollutants as easily as the EPA. They should not be excused from producing an adequate SIP because it is too hard. If the EPA wishes to assist in general pollution budget allocations and rulemaking that might make it easier for the states, but it would also take more time. The prohibition against significant downwind pollution is a provision of the CAA that has been violated most assuredly since the modern act was first passed in 1970, and the effect of this opinion further delays compliance.

In its granting of certiorari, the Supreme Court stated that it will address the procedural question, the state’s ability to promulgate a SIP before EPA sets a budget, as well as whether or not the EPA’s allocation of cross state pollution has to be exact. These are exactly the right questions to consider because the majority at the DC Circuit answered them all wrong.

Victor Flatt, CPR Member Scholar, Taft Prof. Environmental Law, UNC School of Law. Bio.

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