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Supreme Court prepares for Upcoming Oral Arguments on CSAPR and GHG Cases


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

The U.S. Supreme Court will hear oral arguments on Dec. 10, 2013, concerning the lawsuit that vacated the EPA’s Cross-State Air Pollution Rule (CSAPR or Transport Rule).  In August 2012, the United States Court of Appeals for the District of Columbia Circuit vacated CSAPR and remanded the rule to EPA in EME Homer City Generation L.P. v Environmental Protection Agency, et al.

The U.S. Supreme Court has limited its review to the three issues addressed in EPA’s petition, which include:

  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 the 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 Clean Air Act instead unambiguously requires EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.

The Respondents’ briefs on the merits were submitted on October 31, 2013.  On November 7, 2013, West Virginia and eight other states, including Kentucky, filed an amicus curiae brief in support of the Respondents.  In the amicus brief, the States’ argument is summarized as EPA altering the cooperative federalism structure of the Clean Air Act to a structure of shutting out the States entirely.  The brief explains that both EPA and the States have specific roles under the Clean Air Act; EPA identifies air pollution problems and set goals for cleaner air and the States achieve those goals while addressing local issues.  The amicus States argue that EPA departed from the cooperative federalism structure by requiring the States to quantify the amount of cross-state air pollution and because of the states’ failure to do so; implementing and imposing federal implementation plans.  EPA’s and the Environmental Groups’ reply briefs are due November 30, 2013.

On October 15, 2013, the United States Supreme Court granted certiorari for six of the nine petitions concerning greenhouse gases (GHGs).  These six cases have been consolidated to one question, “whether EPA permissibly determined that its regulation of greenhouse gas emissions from new motor vehicles triggered permitting requirements under the Clean Air Act for stationary sources that emit greenhouse gases.”  The Court has allotted one hour for oral argument which has been scheduled on February 24, 2014.

The issue stems from a June 2012 federal appeals court ruling, Coalition for Responsible Regulation v. EPA, that upheld EPA’s limits on GHGs from car tailpipes, factories and power plants, ruling that EPA’s interpretation of the Clean Air Act was “unambiguously correct,” and the finding that the emissions posed a public health risk was “neither arbitrary nor capricious.”

Petitioners’ briefs on the merits are due December 9, 2013.  EPA’s briefs on the merits are due January 21, 2014.

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


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