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U.S. Supreme Court Agrees to Review Decision Vacating Cross-State Air Pollution Rule


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

On June 24, 2013, the U.S. 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, required 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 required 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 for two main reasons: (1) the Transport Rule could require upwind states to reduce emissions by more than their own significant contributions to a downwind state’s nonattainment; and (2) EPA did not provide states with the opportunity to implement the EPA required emission reductions; rather it quantified the states’ obligations and emissions reductions and developed FIPs to implement the obligations at the state level.  For more details regarding the D.C. Circuit Court of Appeals ruling see the third quarter 2012 issue of the Air Quality Letter.

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.

CAIR will remain in effect pending the outcome of the U.S. Supreme Court’s review of the Transport Rule.  On July 16, 2013, the Court granted a request by the Solicitor General’s Office for an extension in the briefing schedule.  EPA’s brief on the merits and joint appendix are due September 4, 2013.  The Respondents’ brief on the merits is due October 31, 2013.  Oral arguments are expected to be heard either late this year or early 2014.  

To view a complete PDF of the Second Quarter 2013 issue of the Air Quality Letter, click HERE.


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