Supreme Court:

Policy Integrity's Revesz discusses arguments on cross-state rule

After yesterday's Supreme Court arguments on U.S. EPA's Cross-State Air Pollution Rule, what precedent could the court set with its decision? During today's OnPoint, Richard Revesz, director of the Institute for Policy Integrity at the New York University School of Law, gives his impressions of the arguments and justices' reactions. He also talks about the impact the court's decision could have on the Obama administration's climate and energy agenda.

Transcript

Monica Trauzzi: Hello, and welcome to OnPoint. I'm Monica Trauzzi. Joining me today is Richard Revesz, director of the Institute for Policy Integrity at New York University School of Law. Ricky, thank you for joining me.

Richard Revesz: I'm delighted.

Monica Trauzzi: Ricky, yesterday the Supreme Court heard arguments in EPA's appeal of last year's D.C. Circuit Court decision on the Cross-State Air Pollution Rule, and at that time, the court had remanded the rule back to the agency. You were present yesterday at court. What stood out to you during the discussion and what signals did you sense from the justices?

Richard Revesz: It was a great argument. The lawyers were very well-prepared. The justices were engaged and interested and asked excellent questions. It's always dangerous to predict an outcome based on the questions the justices ask because they might be signaling their view or they might just be trying to answer questions that they have, so one always does that at one's peril. I have to say that I thought that the argument went very well for the government, for EPA. I think the government was able to engage the justices on its core point, which is that costs can be taken into account in setting the pollution control burden between upwind and downwind states, and that's the core of the case. For 30 years, the government has had a consistent position on this issue, which is that it's going to allocate this pollution control burden in the way that minimizes the costs of doing so nationwide, and I thought the government did a very good job at presenting that argument. On the other side, there were two lawyers arguing, one for the states and one for industry, and the lawyer for the states had no position on the cost issue. It explicitly had no position, and so the side against the government itself sort of split on that question, and I thought the lawyer for industry, even though he actually did a very good technical job, was not really, did not get much traction on his argument, which essentially was that we should spend more money for something that would accomplish more cheaply, and that made sense.

Monica Trauzzi: So 90 minutes of arguments, as opposed to the usual 60. Were there anything, was there anything that surprised you?

Richard Revesz: Yes, the one surprising thing is that the court had granted cert on three different issues, and one of the issues was whether any of this was properly presented to the court because the challengers to the regulation had not filed comments in the notice and common rulemaking, and typically that would then not make it possible for them to bring a challenge in the D.C. Circuit. The D.C. Circuit addressed that issue by saying that, because comments had been filed in a prior related proceeding, that the requirement was satisfied. Now, I had assumed that the court granted 90 minutes of oral argument because it wanted to have all three of the issues well-discussed, but one of the three issues wasn't discussed at all. None of the lawyers raised it and no justice asked any questions. Now obviously, they were briefed and the justices could go back to the briefs, but I think it was unusual that, given the fact that they granted cert on three issues and that they had additional argument time, that no one actually seemed interested in talking about that one issue.

Monica Trauzzi: What precedent could the court set here with this decision?

Richard Revesz: Well, this is a very important case because a lot of the pollution problems in the Northeast come from the Midwest. Now it's not really a question of whether the federal standards are going to be met. They have to be met and everyone can seize and agrees on that, but the question is are they going to be met in a way that minimizes the overall costs of doing that or are they gonna be met in some other way? And once the court decides this case, there are going to be other proceedings raising these interstate pollution issues. That decision is going to affect how the agency allocates these burdens in future cases.

Monica Trauzzi: And beyond interstate pollution issues, what impact could the decision have on the other regulations that the Obama EPA is trying to work on?

Richard Revesz: None. The court has granted cert in another case under the Clean Air Act that's going to be argued in late-February. That case involves a permitting question on greenhouse gases, and that case has some connection to the Obama administration's plan to regulate both the greenhouse gas emissions of both new and existing sources. But even that case doesn't centrally, however it goes, will not have a big impact on those cases because it deals with a different provision of the Clean Air Act, but at least that case deals with greenhouse gases, so the court would have to say something about the regulation of greenhouse gases under the Clean Air Act. This case does not deal with greenhouse gases. It deals with conventional pollutants, sulfur dioxide, nitrogen oxides, and so it would, I don't think there's anything the court could do in this case that would have much implication one way or the other for the regulation of greenhouse gases under the Clean Air Act.

Monica Trauzzi: Justice Alito has recused himself from this case. What kind of split could we see from the court on the final decision? 4-4 is possible.

Richard Revesz: 4-4 is possible. The one split we know we cannot see if 5-4 or any split that adds up to nine, since we only have eight. 4-4 in this case would be an affirmance by an equally divided court, and that would mean affirming the D.C. Circuit, which struck down the regulations. Now, on a 4-4 outcome, no opinions get written and there's no precedential effect, so all that happens is that this particular case gets decided, but there's no guidance for the future because there are no opinions.

Monica Trauzzi: Is a partial win for the agency possible, and what would that look like?

Richard Revesz: A partial win is always possible, but there is a core issue, and that issue overshadows everything else, and the core issue is can costs be taken into account in setting this pollution control burden? And to some extent, either they can or they can't. I mean, you know, there isn't much of a halfway position, and if they can, the way the agency ... clear and reasonable. So that is the core of the case, and you know, from just observing the strength of the arguments and knowing the background and knowing this consistent history spanning administrations of both parties over more than three decades, I thought that EPA did very well in presenting its case today. There are lower-level issues, and on those, it's possible that there'll be some split, but my guess is that those are just more likely to get remanded back to the D.C. Circuit. Whenever the court decides a big issue, they're going to be sort of second order issues, and those often the court doesn't deal with. It just sends them back to have the Court of Appeals figuring them out in light of whatever it is the court chose to decide.

Monica Trauzzi: All right, Ricky, we're going to end it right there. Thank you so much for coming on the show.

Richard Revesz: Thank you.

Monica Trauzzi: And thanks for watching. We'll see you back here tomorrow.

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