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Supreme Court reverses lower court, revives EPA’s Cross-State Air Pollution Rule

From the April 30, 2014 issue of Public Power Daily

Originally published April 30, 2014

The Supreme Court yesterday reversed an appeals court decision that overturned the Environmental Protection Agency’s Cross-State Air Pollution Rule (CSAPR or the Transport Rule). The regulation would require 28 upwind states to reduce emissions of nitrogen oxide (NOx), sulfur dioxide and particulate matter to achieve attainment of three National Ambient Air Quality Standards in downwind states.

In a 6-2 decision in EPA v. EME Homer City Generation, the Supreme Court reversed the U.S. Court of Appeals for the District of Columbia Circuit’s holding that EPA, after setting an emissions budget for each state, was required to give each state a reasonable amount of time to propose a State Implementation Plan to meet the emissions budget.

The Supreme Court also upheld EPA’s method for allocating emissions among the contributing upwind states. The court deferred to EPA's method, which considered both the magnitude of upwind states’ contributions and the cost associated with eliminating them. "EPA’s cost-effective allocation of emission reductions among upwind States is a permissible, workable, and equitable interpretation of the [Clean Air Act’s] Good Neighbor Provision," Justice Ruth Bader Ginsburg wrote in the majority opinion.

The Supreme Court said it agreed with the appeals court that EPA cannot require a state to reduce its output of pollution (1) by more than is necessary to achieve attainment in every downwind state or (2) by an amount that would put the state below the one-percent threshold set by EPA for violation of the Good Neighbor Provision. 

"Neither possibility, however, justifies wholesale invalidation of the Transport Rule," Ginsburg wrote. 

If any upwind state "concludes it has been forced to regulate emissions below the one-percent threshold or beyond the point necessary to bring all downwind States into attainment, that State may bring a particularized, as-applied challenge to the Transport Rule, along with any other as-applied challenges it may have," Ginsburg added.

The Supreme Court remanded the case to the appeals court "for further proceedings consistent with this opinion."

The 28 states covered by the regulation are: Alabama, Arkansas, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Mississippi, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Carolina, Tennessee, Texas, Virginia, West Virginia, and Wisconsin.


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