Justices Express Sympathy for EPA's Tack on Pollution Crossing State Lines

Agency Focuses on Using Most Cost-Effective Methods to Cut Emissions

Wall Street Journal
10 December 2013
By Jess Bravin

WASHINGTON—Supreme Court justices on Tuesday expressed sympathy for the Environmental Protection Agency's approach to air pollution that crosses state lines, in a case testing the high court's view of environmental regulations opposed by industry.

The EPA released its Cross-State Air Pollution Rule in 2011, saying it wanted to protect "downwind" states from pollution they couldn't control. But a coalition of "upwind" states and utility and mining industry groups challenged the rule, which focuses on overall cost-efficiency. They say the rule unfairly punishes them by requiring new pollution-control equipment even if they had already made strides toward curbing emissions that harmed states downwind.

The upwind states, led by Texas, contend the agency undermined the role Congress assigned states in controlling emissions from power plants and other sources. "EPA's actions in this case have written the states out of the Clean Air Act," Texas Solicitor General Jonathan Mitchell, who is representing a group of upwind states, told the court.

The Obama administration, in its brief in support of the rule, said pollution generated by upwind states was largely responsible for poor air quality in some downwind ones. For instance, it said 93% of the ozone pollution in New Haven, Conn., came from out-of-state sources. In addition to the downwind states, big cities including Chicago, New York and Philadelphia as well as health groups such as the American Lung Association are backing the EPA rule.

"There are sovereign state interests on both sides of this case," Deputy Solicitor General Malcolm Stewart told the court. "It's a matter of EPA trying to act as an honest broker between the upwind and downwind states."

Justice Stephen Breyer was among those suggesting that it made sense for the agency to look at costs. "I don't know anything in the law that tells [the EPA] that this statute was meant to force them to proceed in a way that would either be hugely more expensive and perhaps impossible," he said.

Of the justices, only Justice Antonin Scalia seemed convinced that the EPA got it wrong. Under the agency's approach, "some states that can more efficiently make the changes will be required to do more than merely account for their proportion of the downwind harm," he said.

But that was exactly the point, Justice Elena Kagan suggested—that "the states that are required to do more are the states that haven't done much already."

Justice Anthony Kennedy also seemed open to that position. "One state finds it quite feasible from a cost standpoint to reduce emissions by a factor of 10. The other state…finds that it can't do it except if it's a factor of a hundred. Can't you say that the contribution in one case is more significant than the other based on feasibility?" he said.

No, said Peter Keisler, a lawyer representing the private parties opposed to the EPA rule. The only factor was the relative amount of pollution emitted by each state, he said.

The rule's challengers also argued that the EPA overstepped its authority by not giving states enough of a chance to submit their own frameworks for meeting emissions standards. But they ran into headwinds, with Chief Justice John Roberts suggesting that the agency had followed the law. "It seems to me that if EPA had taken a different view, it would have been contrary to the statute," Chief Justice Roberts said.

Justice Sonia Sotomayor added that the states could offer counterproposals if they didn't like the EPA's plan.

The EPA's regulation emerged after years of litigation over 1990 amendments to the Clean Air Act. The legal issues derive in part from the law's sometimes-clashing objectives of preserving state prerogatives while ensuring that the federal EPA has the power to protect Americans from pollutants shown to cause asthma, heart attacks and other ailments.

Justice Samuel Alito recused himself from the case, presumably because he owns shares in one or more of the companies involved. A decision is expected by June.

The appellate-court decision striking down the cross-state pollution rule came from the U.S. Court of Appeals for the District of Columbia Circuit, the flashpoint of a partisan battle over judicial appointments, in part because it hears the lion's share of regulatory cases and other disputes involving federal authority. In the D.C. Circuit's 2-1 decision, two George W. Bush appointees voted against the EPA while a Bill Clinton appointee dissented, spotlighting the broader fight over the court.

Write to Jess Bravin at jess.bravin@wsj.com