SUPREME COURT RULES ON EPA’S INTERSTATE AIR POLLUTION “TRANSPORT RULE”

By TONI ELLINGTON

On April 29, 2014, the U.S. Supreme Court issued an opinion which could serve to strengthen the power of the EPA in environmental actions.  In a 6-2 decision written by Justice Ruth Bader Ginsburg, the Court ruled in favor of the EPA’s decision to implement a federal plan to address air emissions that travel or drift across state lines, and the implementing rules related to the EPA’s regulation of interstate air pollution.  The ruling affirms the Cross-State Air Pollution Rule or “Transport Rule,” which was originally implemented by the EPA in 2011.

The case, Environmental Protection Agency, et al. v. EME Homer City Generation L.P., dealt with the efforts of Congress and the EPA to address the complex problem of air pollution which is emitted in one state but causes harm in another state or states.  Congress included a Good Neighbor Provision in the Clean Air Act which instructs states to prohibit in-state sources from emitting any air pollutant in amounts which will contribute significantly to downwind states’ non-attainment or interfere with maintenance of any EPA National Ambient Air Quality Standard.  42 U.S.C. §7410(a)(2)(D)(i).

D.C. Circuit Court of Appeals vacated the Transport Rule in its entirety.  The Supreme Court reversed the D.C. Circuit in its ruling, finding that the EPA’s interpretation of the Good Neighbor Provision was a permissible construction of the statute.

Under the Transport Rule and its screening and control provisions, an upwind state contributes significantly to downwind non-attainment to the extent its exported pollution (1) produced one percent or more of a National Ambient Air Quality Standard in at least one downwind state, and (2) could be eliminated cost-effectively, as determined by the EPA.   The Court found that the methods employed by the EPA were reasonable, noting that the EPA evaluated 2,479 separate linkages between downwind and upwind states, and “conducted complex modeling to establish the combined effect the upwind reductions projected at each cost threshold would have on air quality in downwind states.”

In vacating the Transport Rule, the D.C. Circuit had ruled that the EPA’s actions exceeded its authority, because the EPA’s procedure under the Good Neighbor Provision did not give states a reasonable opportunity to allocate their emissions budgets, because the states were denied a second opportunity to file a State Implementation Plan after the EPA quantified the State’s interstate pollution obligations.  The Supreme Court found that based on the plain language of the Clean Air Act, once the EPA disapproves of a state’s State Implementation Plan, it can issue a Federal Implementation Plan to deal with the interstate pollution without seeking a second plan from the state.

The entire text of the Supreme Court’s opinion is available at www.supremecourt.gov/opinions.  For additional information or questions, contact Toni Ellington at (504) 599-8500.