December 12, 2013

EPA’s ability to regulate cross-state pollution unnecessarily at stake: SCOTUS should uphold transport rule

Earlier this week, the Supreme Court heard oral argument in EME Homer City Generation v. EPA.  At issue in the case was the ability of EPA to regulate cross-state pollution, or pollution generated in some states that is carried over to others downwind. Eight “downwind” states, primarily in the Northeast, filed a brief in support of the Court’s review of a previous decision by the D.C. Circuit Court of Appeals, which struck down the rule EPA implemented to regulate cross-state pollution.

The rule stems from the “Good Neighbor” provisions of the Clean Air Act, which calls on EPA’s good judgment to address the issue of one state unfairly polluting another. More than 90% of ozone levels in Connecticut stem from out of state pollution sources, contributing to the soaring levels of asthma and respiratory illness in the area. In order to mitigate this kind of pollution from other states, the EPA devised a cost-based system to determine what kind of plan an upwind state must implement in order to reduce pollution when the state has inadequately created its own plan to limit its pollution in other states, also known as the transport rule.  Upwind states, industry and labor groups argue that the federal government is inappropriately inserting itself into a decidedly state issue when the federal government does not have adequate information to assign pollution-reduction plans.

Most reports of the oral arguments interpret a favorable stance from the Justices towards the EPA’s cost and science-based approach to regulate what it describes itself as a “dense spaghetti-like matrix.”  However, and as I’ve discussed in this space before, the procedural questions about whether the D.C. Circuit should have reviewed the transport rule in the first place, largely escaped the attention of the Justices even though the issue was briefed.   

In fact, as noted in Judge Rodgers excellent dissent in the D.C. Circuit, the majority opinion exceeded its jurisdictional authority because the upwind states challenge was foreclosed by previous rulemakings, including the EPA’s findings that the states that were ordered to implement Federal Implementation Plans, or FIPs, had inadequate plans and were not incompliance with the rule’s requirements. The states’ failed to follow administrative procedure by challenging the EPA’s conclusion that their plans were inadequate and jumped to file a legal challenge. By short-circuiting the required administrative procedure, the challenge should not have been heard, and the fact that it was considered by the D.C. Circuit majority has serious implications for other environmental and administrative legal challenges.

The EPA has a difficult technical job in measuring and modeling pollution levels from multiple sources.  These analyses are time consuming and resource intensive.  When they are wrong they should be challenged, but in the administrative process.   Legal challenges after a scientific determination has been subject to administrative rulemaking results in a waste of resources and extends the time necessary for the agency to do its Congressionally mandated job.  Disregarding the common law (and in this case statutory) requirements of administrative exhaustion are very dangerous and could paralyze all agency abilities to carry out their mandated requirements.

The complexity of the discussion also results in significant misunderstandings about how the Clean Air Act actually works.

According to E&E News, during the argument:

But the conservative justices took issue with EPA on other points.

In particular, they criticized EPA for skipping to federal implementation plans, or FIPs, instead of letting states devise their own plans to comply with the standards. Moreover, EPA jumped to FIPs before it had told states what emissions limits they needed to meet.

There was "no possible way for states to know" what emissions limits they were supposed to meet, Roberts said.

"That's crucial," Justice Antonin Scalia added. The states "don't know what their target is." 

EPA, Scalia added, "has hidden the ball."

The EPA did not hide “the ball” because the states themselves have sophisticated access to information about production, modeling, and transport of pollutants as easily as the EPA. They should not be excused from producing an adequate State Implementation Plan or SIP because it is too hard.  The states did design plans, the EPA just found them inadequate, which is well within its authority under the Clean Air Act, to require that all states ensure that their SIPs do not cause a violation of ambient air quality standards in another state.

More than 30,000 deaths annually could be prevented by moving forward with the cross-state pollution rule, EPA should be permitted to fulfill its mission to protect the public health and welfare. Let’s hope a majority of the Justices agree.






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

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