Justices Express Sympathy for EPA's Tack on Pollution Crossing
Agency Focuses on Using Most Cost-Effective Methods to Cut
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
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 email@example.com