REGULATORY: Environmental: U.S. Supreme Court Agrees to Review Interstate Air Pollution Rules

by King & Spalding
Contact

The U.S. Supreme Court will give the Environmental Protection Agency another chance to justify its rule targeting interstate air pollution. On June 24, 2013, the Court agreed to take up this issue by reviewing a case from the U.S. Court of Appeals for the D.C. Circuit: EME Homer City Generation, L.P. v. Environmental Protection Agency.

The case hinges on the validity of EPA's so-called "Transport Rule." The Clean Air Act authorizes EPA to set National Ambient Air Quality Standards (NAAQS) that states must satisfy. Each state is responsible for finding a way to comply with the NAAQS, but natural wind patterns often complicate these efforts by transporting pollution from one state to another. Accordingly, a "good neighbor" provision of the Clean Air Act makes upwind states responsible for addressing air pollution that travels downwind and prevents other states from meeting the NAAQS. In the Transport Rule, EPA required 28 upwind states to reduce specified levels of nitrogen oxide and sulfur oxide emissions. At the same time, EPA promulgated Federal Implementation Plans ("FIPs") specifying precisely what steps the upwind states must take to meet these targets.

EPA's actions prompted various state and local governments, industry groups, and labor organizations to challenge the legal validity of the Transport Rule. These groups argued that, by forcing upwind states to reduce more downwind pollution than their "significant contribution," the rule violates the Clean Air Act. Furthermore, the groups also challenged EPA's authority to issue FIPs without first giving upwind states an opportunity to create their own standards.

A divided three-member panel of the D.C. Circuit agreed and vacated the Transport Rule. According to the majority, the rule went beyond the authority that Congress delegated to EPA in the Clean Air Act. The decision included a vigorous dissent from Judge Judith Rogers, who argued that the court did not properly defer to EPA's interpretation of the Clean Air Act. Judge Rogers also thought the court lacked jurisdiction to decide the case in the first place because the challengers filed their suit too late and did not raise their objections in an earlier proceeding. EPA echoed many of Judge Rogers' arguments in its petition asking the Supreme Court to review the case, setting the stage for the three issues the Supreme Court will address:

  • Whether the Court of Appeals had jurisdiction and properly struck down the FIP rules;
  • The reasonableness of EPA's interpretation of the "good neighbor" provision of the Clean Air Act; and
  • Whether the Court of Appeals' reasoning disrupts EPA's approach to managing the Clean Air Act.

The fate of EPA's Transport Rule now lies with the Supreme Court. The case presents numerous complicated questions regarding the scope of EPA's authority, the proper interpretation of the Clean Air Act, the proper federalism role of the states, courts, and federal agencies in environmental regulation, and difficulties in addressing interstate air pollution.

The Court's decision will have major implications for the energy sector. EPA's interstate air pollution regulations require meaningful emissions reductions, primarily affecting coal- and natural gas-fired power plants—the source of most of the electricity in the United States. Moreover, the D.C. Circuit's decision to vacate the Transport Rule leaves the energy industry in a state of uncertainty. The Transport Rule is actually EPA's third attempt to regulate interstate air pollution. The Rule's immediate predecessor, a 2005 Clean Air Interstate Rule Program ("CAIR"), was also invalidated by the D.C. Circuit. However, CAIR remains in effect until the Court determines the validity of the Transport Rule.

The energy sector will have to wait until the Court's next term, which begins in October, to get a better picture of what the regulatory landscape regarding interstate air pollution will ultimately look like.

Cameron Norris
Washington, D.C.
+1 202 626 9294
cnorris@kslaw.com

 

 

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.

© King & Spalding | Attorney Advertising

Written by:

King & Spalding
Contact
more
less

King & Spalding 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.
Custom Email Digest
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.