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Supreme Court Grants Certiorari to Review Cross-State Air Pollution Rule (CSAPR) Decision


By Kate E. Beatty, Attorney, Bingham Greenebaum Doll LLP

On June 24, 2013, the Supreme Court granted certiorari in EPA, et al. v. EME Homer City, et al. to review the challenge to EPA’s Cross-State Air Pollution Rule (CSAPR or the Transport Rule).  The Transport Rule was developed to replace EPA’s 2005 Clean Air Interstate Rule (CAIR) in response to a 2008 court decision that found CAIR to be flawed.  The Transport Rule, finalized in July 2011, requires 28 states in the eastern half of the United States to reduce annual sulfur dioxide SO2 emissions, annual nitrogen oxide NOx emissions, and/or seasonal NOx emissions to assist in attaining the 1997 ozone and fine particle and 2006 fine particle National Ambient Air Quality Standards (NAAQS).  The Transport Rule also requires a reduction of emissions from power plants, among other sources, that cross state lines and contribute to ground-level ozone and fine particle pollution in other states.  The EPA promulgated Federal Implementation Plans (FIPs) for each of the states covered by the rule to assure emissions reductions.

In EPA, et al. v. EME Homer City, et al. the D.C. Circuit invalidated the Transport Rule stating that the Transport Rule exceeded EPA’s statutory authority for two main reasons.  First, EPA is only statutorily granted the authority to require upwind states to reduce only their own significant contributions to a downwind state’s nonattainment.  However, under the Transport Rule, upwind states could be required to reduce emissions by more than their own significant contributions to a downwind state’s nonattainment.  Second, the Clean Air Act provides states with the initial opportunity to implement EPA required emission reductions that cross state lines.  However, through the Transport Rule, EPA quantified the states’ obligations and emissions reductions and developed FIPs to implement the obligations at the state level.

The Supreme Court has limited its review to only the three issues addressed in EPA’s petition, which are:

  1. Whether the Court of Appeals lacked jurisdiction to consider the challenges on which it granted relief.
  2. Whether states are excused from adopting SIPs prohibiting emissions that “contribute significantly” to air pollution problems in other states until after EPA has adopted a rule quantifying each state’s interstate pollution obligations.
  3. Whether EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.

CAIR will remain in effect pending the outcome of the Supreme Court review of the Transport Rule.  The Supreme Court will hear oral argument next fall.

To view a complete PDF of the May/June 2013 issue of the Environmental Letter, click HERE.


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