Supreme Court to hear oral arguments tomorrow

The Problem

Air_.pollution_1Because air pollution is carried by wind and moves across state lines, upwind states that generate pollution inevitably end up passing that pollution onto downwind states.  This imposition on downwind states not only endangers their residents’ health and safety, it also endangers the downwind states’ ability to meet federal air quality.

The Solution

To tackle this problem, Congress passed the Clean Air Act (CAA), which requires the Environmental Protection Agency (EPA) to set certain air quality standards for harmful pollutants, and includes a “good neighbor” provision to limit interstate air pollution.  This provision requires upwind states to implement policies that (1) put them in compliance with air quality standards, and (2) prevent them from emitting pollution that “significantly contributes” to air quality problems in downwind states.  In other words, “the good neighbor provision requires upwind States to bear responsibility for their fair share of the mess in downwind States.”

Like any law, the CAA’s “good neighbor” provision can only be effective if it is enforced.  To do so, the EPA created the Transport Rule, which identified 28 upwind states that were not in compliance with the “good neighbor” provision and set forth federal implementation plans to bring them into compliance.

The Lawsuit

Several upwind states and various industry groups challenged the Transport Rule in in the U.S. Court of Appeals for the D.C. Circuit, which, on a 2-1 vote, struck down the rule as invalid under the Clean Air Act.  It found both that the rule imposed too great a burden on upwind states, and that the portion of the rule allowing federal implementation plans was invalid.  In a long and impassioned dissent, Judge  Judith Rogers wrote that “[t]he Transport Rule, as [as] EPA observes, represents ‘the culmination of decades of Congressional, administrative, and judicial efforts to fashion a workable, comprehensive regulatory approach to interstate air pollution issues that have huge public health implication.’”

The government argues that if the D.C. Circuit decision is “left undisturbed, [it] will gravely undermine the EPA’s enforcement of the Clean Air Act.”  Indeed, if the Supreme Court refuses to overturn the ruling, little will prevent big corporations like EME Homer City Generation—operator of coal-fired electric generating units—from substantially polluting downwind states, jeopardizing the health and lives of the people who live there.

The Supreme Court will hear oral arguments in EPA v. EME Homer City Generation on Tuesday, December 10th, at 10am EST.  It has extended the normal time for oral argument in the case from 60 minutes to 90 minutes, an unusual change that demonstrates the importance of the issues at stake.