Quick Take On EME Homer

by LeClairRyan
Contact

US Supreme CourtThe Supreme Court yesterday issued an important Clean Air Act decision in the EPA v. EME Homer Generation case, reversing the D.C. Circuit. No doubt hundreds of blogposts and newsletters will be written about the case, but I wanted to share my initial thoughts after reading the Court’s opinion.  There’s some jargon below that might be confusing for the Clean Air Act novice, but those references are not really critical to the points I want to make.

Briefly, there were two issues in this case, which challenged EPA’s Cross-State Air Pollution Rule (CSPAR).  This rule was intended to implement the “good neighbor” provisions of the Act, which requires upwind states to reduce their emissions to the extent those emissions prevent downwind states from attaining compliance with applicable National Ambient Air Quality Standards.  The D.C. Circuit had held, first, that EPA had erred by not allowing the upwind states to issue their own state implementation plans (SIPs) to comply with the rule before issuing a federal implementation plan (FIP) specifying the levels of emission reductions demanded of the upwind states.  The D.C. Circuit also held that EPA’s method for allocating the required reductions among the upwind states – by considering which reductions would be most “cost-effective” – violated the Act by not requiring reductions proportional to the upwind states’ actual contribution to pollution in downwind states.

The Supreme Court reversed on both grounds in a 6-2 opinion authored by Justice Ginsburg (with Justices Scalia and Thomas dissenting, and Justice Alito recused).  First, the Court held that nothing in the Act required EPA to give states an opportunity to issue SIPs (after their earlier SIPs had been rejected by EPA) before issuing its FIP.  Second, the Court found that the statute was ambiguous on how to allocate reductions from the upwind states and that EPA’s allocation approach was reasonable.  In other words, in the face of an ambiguous statute, the Court deferred to EPA’s interpretation, consistent with that other landmark Clean Air Act case, Chevron.

Several takeaways:

  • This is the first big win for both EPA and environmental groups in the Supreme Court in some time.  Even if environmental groups might have been pleased when the Court ruled in Massachusetts that the Clean Air Act required regulation of greenhouse gasses from automobiles, EPA lost that case on the grounds that the Agency’s interpretation of the statute conflicted with its plain terms.  Here, for the first time in a long time, the Court deferred to EPA’s interpretation of a law that the Agency is responsible for implementing.  And the win was resounding, with Justices Kennedy and Roberts siding with the more liberal wing of the Court.  This is good news for EPA, but it may be shortlived depending on how the Court rules in the Utility Air Regulatory Group case, in which industry and several states are challenging EPA’s PSD regulations for greenhouse gasses.  It is impossible to say whether the Court’s decision today represents a trend towards more deference to EPA, but it surely is a start in that direction.
  • The D.C. Circuit opinion was authored by Judge Kavanaugh, whose previous opinions and dissents had appeared to carry significant weight, at least among the more conservative justices.  The Supreme Court’s opinion today flatly rejected Judge Kavanaugh’s reasoning.  Again, it is unclear whether this represents a trend, but it does indicate that the Court will not simply adopt his views in all cases.
  • The decision also strikes a blow to the concept of “cooperative federalism” that industry and several states have been pushing with respect to the Clean Air Act.  The cooperative federalism argument is that EPA has too often stepped on the rights of states two whom the Act gives primacy to address pollution within their borders.  Here, the idea was that EPA should have allowed the states the opportunity first to determine how best to reduce emissions before EPA itself issued detailed plans for each state.  The Court clearly rejected this argument, finding that EPA has significant authority to act where states have failed to.
  • On a substantive level, this decision is a major victory for EPA.  The Agency has struggled for years trying to develop a workable solution to upwind pollution only to have its rules rejected by the D.C. Circuit.  EPA can be assured now that its approach is valid and the requirements of the CSAPR must now be implemented.  Downwind states and their environmental allies will be quite pleased.  It also is another body blow to coal-fired power plants, as most of the reductions in CSPAR are demanded from them.  The regulatory pressure encouraging a switch to natural gas and other “cleaner” forms of electricity continues.
  • As noted, there remains one more important Clean Air Act case for the Court to decide this term – whether EPA’s PSD rules for greenhouse gasses are lawful.  The Court’s decision in the EME case and the greenhouse gasses cases, however, will have no bearing on whether EPA moves ahead with its greenhouse gas New Source Performance Standards for new and existing electric generation units, expected to be issued before President Obama leaves office.  But, the Court’s decision in EME surely bolsters EPA’s confidence that the D.C. Circuit will need to show more deference to the Agency regardless of the approach it takes.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© LeClairRyan | Attorney Advertising

Written by:

LeClairRyan
Contact
more
less

LeClairRyan on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.