Court Upholds Obama Rule on Cross-State Air Pollution
29 April 2014
WASHINGTON — The U.S. Supreme Court on Tuesday handed the Obama
administration an important victory in its effort to reduce power
plant pollution in West Virginia and more than two dozen
Midwestern and Southern states, which blows downwind and leads to
The decision caps a decades-long effort by the Environmental
Protection Agency to find a legally acceptable way to ensure that
states are good neighbors and don’t contribute to pollution
problems in downwind states, where environmental officials can do
nothing to control it. The rule upheld Tuesday was EPA’s third
attempt to solve the problem.
In a 6-2 decision, the court upheld a rule adopted by the EPA in
2011 to limit emissions that create smog and soot that drifts into
the air above states along the East Coast.
The ruling means that the polluting states will be forced to
reduce smokestack pollution that sullies the air in downwind
states. Industry and upwind states had fought the effort and paint
it as another attempt by the administration to shut down
coal-fired power plants.
Writing for the majority, Justice Ruth Bader Ginsburg acknowledged
the complexity of the problem before EPA.
“In crafting a solution to the problem of interstate air
pollution, regulators must account for the vagaries of the wind,”
Power companies and several states sued to block the rule from
taking effect, and a federal appeals court in Washington agreed
with them in 2012. West Virginia Attorney General Patrick Morrisey
had filed a “friend of the court” brief to oppose the EPA rule.
Sulfur dioxide and nitrogen oxide pollution from power plants can
be carried long distances and the pollutants react with other
substances to form smog and soot, which have been linked to
respiratory illnesses and other disease. The cross-border
pollution has prevented many cities and counties from complying
with health-based air pollution standards set by law, because they
have not authority to control it.
“The Supreme Court today laid to rest the well-worn issue of how
to regulate air pollution that is transported hundreds of miles
throughout the eastern U.S. and that makes it nearly impossible
for states acting along to protect the health and welfare of their
citizens,” said Bill Becker, the executive director of the
National Association of Clean Air Agencies, which represents air
pollution control agencies in 45 states and territories and 116
major metropolitan areas nationwide.
The new downwind pollution rule was triggered by a federal court
throwing out the previous rule penned by the Bush administration.
The new rule would cost power plant operators $800 million
annually in 2014, according to EPA estimates. That’s in addition
to the $1.6 billion spent per year to comply with the 2005 Bush
rule that was still in effect until the government drafted the new
The EPA said the investments would be far outweighed by the
hundreds of billions of dollars in health care savings from
cleaner air. The agency said the rule would prevent more than
30,000 premature deaths and hundreds of thousands of illnesses
Texas led 14 states and industry groups in challenging the rule.
Most downwind states support it.
States had argued, and the lower court agreed, that they deserved
a chance to figure out how much they were contributing to
pollution in other states and how to reduce it before the EPA
prescribed fixes. The lower court also faulted EPA for requiring
states to reduce pollution through a complex formula based on cost
that did not exactly match how much downwind pollution a state was
Opponents of the decision Tuesday said it violated the intent of
the Clean Air Act, which envisions states and the EPA working
cooperatively to rein in air pollution.
“The Supreme Court majority has refused to allow the states to
have any voice in the practicalities of determining the impact of
their emissions on neighboring states,” said Richard Faulk, senior
director at George Mason Law School’s Energy and Environment
Initiative. Faulk filed a brief in the case in support of the
arguments of industry and the upwind states.
The high court said the EPA was allowed under the Clean Air Act to
implement federal plans in states that had not adequately
addressed pollution that blows downwind. The court also ruled that
the EPA also was authorized to consider how costly controls on
pollution are and did not have to require states to reduce
pollution by the exact amount they contribute to downwind states.
The court, agreeing with EPA, found such a requirement to be
impossible in practice.
“The realities of interstate air pollution, however, are not so
simple,” Ginsberg says in the opinion. “Most upwind states
contribute to pollution to multiple downwind states in varying
In a vigorous dissent, Justice Antonin Scalia said the EPA had
“zero textual basis” in the Clean Air Act for applying a
cost-benefit standard without regard to the amount of downwind
pollution for which a state is responsible.
“Today’s decision feeds the uncontrolled growth of the
administrative state at the expense of government by the people,”
Scalia said, reading part of his dissent from the bench. The
result “comes at the expense of endorsing, and thereby encouraging
for the future, rogue administration of the law.”
Justices Clarence Thomas joined Scalia in dissent. Justice Samuel
Alito took no part in consideration of the case.
Ginsburg said Scalia’s approach would result in “costly
overregulation” and called it “both inefficient and inequitable.”
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