Air Pollution Rule Revived

The Supreme Court last week upheld the Environmental Protection Agency’s regulation of air pollution that drifts across state lines. By a 6-2 vote, the court ruled that EPA did not violate the Clean Air Act when it implemented a federal scheme in 2011 for reducing power plant emissions across 28 states in the eastern half of the U.S.

The regulation will reduce the sulfur dioxide and nitrogen oxides emitted from about 1,000 coal-fired power plants in states such as Ohio and Michigan that contribute to high levels of soot and smog in New York, Connecticut, and other downwind states. The pollution has prevented many cities and counties from complying with federal air quality standards.

Utility companies and several affected states had sued to block the rule, arguing that the Clean Air Act envisions EPA and the states working cooperatively to limit air pollution. In August 2012, the U.S. Court of Appeals for the District of Columbia Circuit agreed and struck down the regulation on the grounds that EPA had exceeded its authority in setting emissions targets for states. The Supreme Court decision overturns the appeals court ruling.

Writing for the majority, Justice Ruth Bader Ginsburg said that EPA’s cross-state air pollution rule reasonably interprets the “good neighbor” provision of the Clean Air Act, which is intended to ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states.

“EPA’s cost-effective allocation of emission reductions among upwind States, we hold, is a permissible, workable, and equitable interpretation of the Good Neighbor Provision,” Ginsburg wrote.

In a dissenting opinion, Justice Antonin Scalia asserted that EPA deprived states an opportunity to craft their own plans to curb emissions before prescribing a federal fix, even though that approach has “zero textual basis” in the clean air statute.

EPA Administrator Gina McCarthy calls the ruling a “resounding victory for public health.”

But the industry-backed Electric Reliability Coordinating Council says it is concerned that EPA “may be emboldened to take actions that undermine cooperation with the states” and endanger electric reliability and affordability.