After having its Cross-State Air Pollution Rule (CSAPR) tossed out by a federal appeals court in 2012, a government attorney representing the Environmental Protection Agency (EPA) tried to convince the U.S. Supreme Court Dec. 10 to overrule the lower court and let the rule go forward.
According to transcripts of the arguments, attorneys and justices spent the session going into deep discussions over the proper methodology for EPA to calculate liability for transport emissions.
The proceeding also saw lawyers and justices use a slew of analogies on how it’s easier for a tall player to dunk a basketball than it is for a shorter player; and what’s the fairest way to assign blame for a problem like power plant pollution.
The process is complicated and depends on a variety of factors that include “where the wind blows — and that changes all the time,” said Justice Stephen Breyer.
EPA playing ‘honest broker’ or forcing states to ‘take a wild guess?’
“This is not a matter of EPA versus the States. It’s a matter of EPA trying to act as an honest broker between the upwind and downwind States,” said Deputy U.S. Solicitor General Malcolm Stewart on behalf of EPA.
Then there was Texas Solicitor General Jonathan Mitchell said that “EPA’s actions in this case have written the states out of the Clean Air Act.” States are left completely in the dark about the meaning of the phrase “contribute significantly” to pollution in other states, Mitchell argued.
Mitchell also contended that states are required to effectively “take a wild guess what their good neighbor obligations are, it effectively compels the States to overcontrol and overregulate.”
In real terms, the cross-state rule requires states that make only a “slight contribution” to air problems in downwind states to make “very substantial reductions,” said Attorney Peter Keisler, who represented labor and industry groups.
But Justice Elena Kagan said the EPA rule seeks to distinguish between states that have invested much money and technology into cutting emissions and other states “that have lots of cheap and dirty emissions.”
In drafting the transport rule, as it is sometimes called, EPA sought to protect the public health “and to strike affair balance between the competing interests of upwind and downwind states,” Stewart said.
Affected upwind states covered by the rule had to contribute 1% or more of the relevant National Air Quality Ambient Air Quality Standard (NAAQS) to a downwind location out-of-state, Stewart said.
Once the states covered by the rule were identified, EPA set a state emissions budget for each state by using computer modeling. As part of the effort, EPA sought to determinate what emission control efforts were already underway and what additional emission reduction could be had by additional control measures, Stewart said.
But Justice Antonin Scalia remained skeptical.
“I want an example of another instance in which EPA has, has hidden the ball, has said, we’re not going to tell you what the target is; it’s up to you to come up –up with a SIP [state implementation plan] and we’ll tell you after the fact whether that SIP happened to meet the target that we’ve invented,” Scalia said.
Stewart countered that EPA released a great deal of information when the proposed rule was announced in the summer of 2010. “For better or worse Congress did place this obligation on the States,” Stewart said.
Scalia suggested it might be more straightforward for EPA to simply “average” the emissions responsibility for offending states. “I don’t think that’s any more irrational than picking a number like 500 bucks [per ton of NOx emissions] … that’s sort of arbitrary,” Scalia said.
Justice Sonia Sotomayor questioned how long it would take to get a new rule in place if the Supreme Court were to affirm the D.C. Circuit’s decision. Stewart said he could not answer that.
The U.S. Court of Appeals for the District of Columbia Circuit in August 2012 vacated the Cross-State Rule. Cross-state was meant to replace the Clean Air Interstate Rule (CAIR), a Bush era rule that was also vacated by the courts.
Case 12-1182 EPA versus EME Homer City and the consolidated case American Lung Association v. EME Homer City Generation.