U.S. Supreme Court to hear Cross-State appeal

The U.S. Supreme Court said June 24 that it will review the D.C. Circuit Court of Appeals 2012 decision that effectively struck down EPA’s Cross-State Air Pollution rule.

The D.C. Circuit in August 2012 threw out the Cross-State Air Pollution Rule (CSAPR) and left the Clean Air Interstate Rule (CAIR) in its place until a new rule is drafted.

Today the Supreme Court granted the request to review the lower court’s decision on the merits. That means the court will hear an appeal of the lower court’s decision during its next term, which begins in the fall.

The D.C. Circuit overturned the Cross-State in August 2012 in EME Homer City Generation v. EPA. “This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants,” said Environmental Defense Fund (EDF) General counsel Vickie Patton.

EPA issued the Cross-State Air Pollution Rule under the “good neighbor” provision of the Clean Air Act, which is intended to ensure that the emissions from one state’s power plants do not cause harmful pollution levels in neighboring states.

The rule would reduce the sulfur dioxide (SO2) and oxides of nitrogen (NOx) pollution emitted from coal plants across 28 eastern states. Those emissions, and the resulting particulate pollution and ozone — more commonly known as soot and smog — drift across the borders of those states and contribute to dangerous, sometimes lethal, levels of pollution in downwind states, EDF said.

The federal government asked the Supreme Court to review the EME Homer City decision, as did EDF, the American Lung Association, the Clean Air Council, Natural Resources Defense Council, and the Sierra Club. Other parties filed briefs in support of EPA’s request, including numerous states and cities that are adversely affected by interstate pollution, and two major power companies.

The first briefs in the case could be filed within 45 days, EDF attorney Graham McCahan told GenerationHub. EDF and the other public interest parties are interested in emission reductions that are durable and sustainable, and not dependent on the marketplace.

When asked if EDF was surprised by the high court agreeing to hear the case, McCahan admitted “the odds are always against you.” This is because the high court tends to grant less than of petitions for review.

“This is welcome news for the millions of Americans afflicted by harmful air pollution from power plants,” said EDF general counsel Vickie Patton.

Industry hopes for ruling against EPA overreach

A lobbyist for electric utilities hopes that the Supreme Court will use the Cross-State case as a chance to make a statement against EPA overreach.

“We hope the Supreme Court will reaffirm and perhaps even extend the ruling of the appellate court in the cross-state air pollution case,” said Electric Reliability Coordinating Council Director Scott Segal.

“Under the guise of the Clean Air Act, the EPA has issued a string of regulations that have pushed the envelope of legal authority. National guidance could be helpful,” Segal added.

“The appellate court was clear in finding that EPA had overstepped its legal authority in developing the rule.  EPA had violated a key principle underlying the Clean Air Act – cooperative federalism.  Not only in this interstate rule case, but also in regional haze rules, consideration of implementation plans, and in permitting decisions, EPA has not showed sufficient respect or deference to state programs,” Segal said. 

At least 10 states had filed legal arguments with the Supreme Court regarding the D.C. Circuit decision. After a three-judge panel at the D.C. circuit tossed out the Cross-State rule 2-to-1, various organizations tried unsuccessfully to get the case reconsidered by the full D.C. Circuit appeals court.

About Wayne Barber 4201 Articles
Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 20 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants. Wayne can be reached at wayneb@pennwell.com.