A Fight Over Cross-State Pollution
New York Times
13 December 2013
By THE EDITORIAL BOARD
The Environmental Protection Agency is charged by the Clean Air
Act with setting air-quality standards and issuing regulations to
limit pollutants like life-threatening particulate matter and
ozone. Because bad air often travels far from its source — 93
percent of the air pollution in New Haven, Conn., for example,
comes from other states — the act’s “good neighbor” policy
requires that every state work to assure that the pollution from
its power plants does not “contribute significantly” to the
pollution in other states. If a state has no plan or an inadequate
one, the E.P.A. can impose its own.
That is what the agency did in 2011 when it passed a rule imposing
new pollution-control requirements on states deemed responsible
for contributing to pollution in downwind states. In part because
there was no way to determine each upwind state’s proportional
responsibility for the pollution in downwind states, the E.P.A.
came up with a cost-based formula that essentially ordered each
state that exceeded a certain emissions threshold to reduce those
emissions by the cheapest means possible.
Industry groups and 14 affected states, mostly in the Midwest and
Southeast, challenged the rule — arguing, among other things, that
it unfairly requires some states to reduce pollution by more than
their actual contribution to the downwind problem. The United
States Court of Appeals for the District of Columbia Circuit
agreed and struck down the rule.
On Tuesday, the Supreme Court heard oral arguments in the case,
which at heart is about the scope of the E.P.A.’s power to protect
the nation’s air quality in the face of imprecise information.
Several justices appeared sympathetic to the agency’s view that
because it is technologically impossible to quantify each state’s
responsibility, a cost-based regulation was the most appropriate
way to improve air quality for everyone. That is clearly right,
even if the states don’t like to hear it.
On the same day that the Supreme Court was considering these
issues, the federal appeals court that invalidated the E.P.A.’s
rule was hearing arguments in another air-quality case, this time
a challenge to the agency’s new standards for mercury and other
toxic air pollutants. In both cases, the courts should defer to
the expertise of the agency and empower it to tackle complex
environmental problems by considering both cost and human health.