AIR POLLUTION:

Supreme Court will review cross-state ruling in win for EPA

The Supreme Court today granted U.S. EPA's request to review a lower court ruling that threw out its program for air pollution that drifts across state lines.

The decision to take up the U.S. Court of Appeals for the District of Columbia Circuit's decision to invalidate EPA's Cross-State Air Pollution Rule, or CSAPR, is a major win for the agency, which faced going back to the drawing board to develop an entirely new program.

Public health advocates, who also asked the justices to hear the case, said the case could yield one of the most important air pollution decisions ever handed down by the high court.

"The justices' decision to hear the case is hugely important, and should make its eventual opinion one of the top five Clean Air Act cases," John Walke of the Natural Resources Defense Council said. "It is very encouraging that the justices are willing to take up a lower court ruling that was so destructive to Americans' right to breathe clean air, and so jarringly inconsistent with the Clean Air Act and administrative law."

In a 2-1 decision last August, the D.C. Circuit held that CSAPR, which applies to 28 Eastern states, violated the Clean Air Act by requiring some states to reduce their emissions more than they contributed to other states' pollution.

"The transport rule includes or excludes an upwind state based on the amount of that upwind state's significant contribution to a nonattainment area in a downwind state," conservative Judge Brett Kavanaugh wrote. "That much is fine. But under the rule, a state then may be required to reduce its emissions by an amount greater than the 'significant contribution' that brought it into the program in the first place. That much is not fine."

The forceful Kavanaugh opinion also held that CSAPR circumvented state authority by skipping state implementation plans in favor of federal ones (Greenwire, Aug. 21, 2012).

The ruling put EPA in a bind as the agency has struggled to come up with an interstate air pollution rule that stands up to legal scrutiny. The court ordered EPA to continue administering the George W. Bush-era Clean Air Interstate Rule, or CAIR, even though the D.C. Circuit ruled in 2008 that it was insufficient for protecting public health.

In urging the court to take the case, Solicitor General Donald Verrilli said the D.C. Circuit made a "series of fundamental errors that, if left undisturbed, will gravely undermine the EPA's enforcement of the Clean Air Act" (Greenwire, April 1).

The agency said it is encouraged by the Supreme Court's decision to take the case and noted the health benefits associated with the rule.

"EPA is pleased that the Supreme Court granted the Agency's petition for certiorari and has agreed to review the decision of the D.C. Circuit," the agency said in an email. "The Cross-State Rule was promulgated to address pollution that crosses state lines and implementation of the rule would lead to significant benefits for human health and the environment."

When it issued the rule, EPA estimated that CSAPR would require power plants to reduce their sulfur dioxide emissions by 73 percent and their nitrogen oxide emissions by 54 percent from 2005 levels. It would cost the power sector about $800 million per year and, consequently, go a long way toward public health advocates' goal of weaning the country off dirty coal-fired power.

Further, EPA said, the rule would result in up to $280 billion in annual health benefits, preventing up to 34,000 premature deaths and 1.8 million sick days annually starting in 2014.

Vickie Patton of the Environmental Defense Fund said the court will see that EPA's legal reasoning behind CSAPR is sound.

"The Cross-State Rule is firmly anchored in science and law, will ensure healthier and longer lives for 240 million Americans, and we look forward to presenting this compelling case for clean air to the high court," Patton said.

EPA and the advocates will likely turn to Judge Judith Rogers' dissent in the D.C. Circuit case. Rogers aggressively stated that Kavanaugh's opinion was "trampling" on D.C. Circuit precedent in the 44-page dissent.

Recess appointment case granted

The Supreme Court also decided to review a D.C. Circuit ruling that significantly limited the president's ability to make recess appointments.

In a case involving a Washington state soft-drink bottler, Noel Canning, the D.C. Circuit ruled in January that three appointments to the National Labor Relations Board by President Obama were invalid.

Obama made the appointments on Jan. 4, 2012, to avoid Republican opposition on Capitol Hill. The court held, however, that the appointments violated Obama's recess appointment authority because the Senate was conducting pro forma sessions.

The D.C. Circuit went further, however, holding that the president may only make recess appointments in between sessions of Congress at the end of every year. Further, the president may only fill vacancies that occur during that same recess, the court held (E&ENews PM, Jan. 25).

Obama had asked the court to review the decision, which called into question hundreds of recess appointments that presidents from both parties have made over the years.

The court will hear both cases when it returns from its summer recess next fall.

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