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U.S. Supreme Court Considers the Validity of EPA’s Cross-State Air Pollution Rule

By: Dan Mach

On December 10, 2013, the U.S. Supreme Court heard oral argument on two challenges to the Environmental Protection Agency’s (“EPA’s”) Cross-State Air Pollution Rule, commonly known as the “Transport Rule” or “CSAPR.”

Under its so-called “good neighbor” provision, Section 110 of the Clean Air Act (“CAA”) requires states to prohibit the emission within their borders of air pollutants that will “contribute significantly” to downwind states’ inability to attain or maintain compliance with national air quality standards.[1] The Transport Rule would implement the good neighbor provision in twenty-eight eastern states by requiring power plants in those states to reduce their emissions of pollutants that cause ground-level ozone and particulate matter pollution in downwind states.

The challengers to the Transport Rule argue, first, that EPA impermissibly issued the rule without first allowing the states the opportunity to achieve compliance with the good neighbor provision without EPA intervention and, second, that the rule impermissibly uses cost-effectiveness as a consideration in determining upwind states’ emissions-control obligations.

Tuesday’s argument was the latest episode of a saga of litigation that has hindered EPA’s efforts to regulate the interstate transport of ozone and particulate matter pollution. In 2005, EPA issued the Clean Air Interstate Rule (“CAIR”) to address the same issue. The D.C. Circuit remanded that rule, in part because it deemed CAIR insufficiently protective of downwind states. After EPA issued the Transport Rule in 2011, the D.C. Circuit vacated the new rule. This time, the court reasoned in part that the new rule could impose overly stringent restrictions on some upwind states.

Litigation arising from EPA’s implementation of the good neighbor provision reflects how regulating the interstate transport of air pollution pits the economic interests of upwind states against the environmental and public health concerns of downwind states. In the instant case, several upwind states from the South and Midwest have filed a brief urging the Supreme Court to affirm the D.C. Circuit’s latest decision, whereas downwind states from the Northeast have filed a brief in support of EPA.

Adding another layer to that dispute, on Monday eight Northeastern states petitioned EPA to add nine upwind states to the Ozone Transport Region (“OTR”) established by Section 184 of the CAA.[2] Being designated as part of the OTR may subject a state to heightened emissions control requirements for ozone-causing pollutants, even if that state is in attainment of EPA’s ozone air quality standards.[3] In support of their petition, the Northeastern states submitted a technical support document that relies heavily on EPA’s analysis of cross-state transport of pollution in the Transport Rule.

Given the stakes of this cross-regional dispute, we can expect that it will continue, whether the Supreme Court sustains the Transport Rule or strikes it down.

For more information on the Transport Rule litigation and related Clean Air Act issues, please contact Jeffrey Gracer, Jonathan Kalmuss-Katz, or Ed Roggenkamp.

[1] 42 U.S.C. § 7410(a)(2)(E).

[2] 42 U.S.C. § 5711c(a).

[3] 42 U.S.C. § 5711c(b)–(c).

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