Air Pollution:

Attorney Mark Levy discusses upcoming Supreme Court New Source Review case

With the Supreme Court preparing to hear arguments in a case dealing with the Clean Air Act's New Source Review program, legal analysts are discussing the potential significance of the court's decision. During today's OnPoint Mark Levy, attorney at Kilpatrick Stockton and former deputy attorney general during the Clinton Administration, outlines the key legal issues in the case. Levy also discusses how this case will serve as a meter of what the new Supreme Court justices think about the Clean Air Act.

Transcript

Darren Samuelsohn: Welcome to OnPoint. I'm Darren Samuelsohn. Joining me today in Washington to talk about an upcoming Supreme Court case is Mark Levy, an attorney at Kilpatrick Stockton, also a former deputy attorney general during the Clinton administration. Mark, thanks for coming on the program.

Mark Levy: My pleasure, Darren.

Darren Samuelsohn: We've got an interesting case coming up before the Supreme Court. It's probably one of the more confusing environmental cases we've seen in a long time, lots of acronyms. A lot of the people watching this case say it's pretty confusing. If you could break it down for us, as simply as possible, what is this case all about?

Mark Levy: It is a very complicated case. It has to do with the standards for determining whether a power plant has to install better technology to clean the emissions from the plant. It arises under a program, the Clean Air Act, that is designed to prevent the significant deterioration of areas that have come into compliance with the national ambient air quality standards. And the key legal issue is how you measure an increase in emissions, which is the statutory and regulatory standard for determining whether new equipment has to be installed. The debate turns on whether those emissions are measured on an annual basis or whether they are measured on an hourly basis. And as technical as that distinction may sound, it has huge consequences both legally and practically.

Darren Samuelsohn: And the consequences are across the board for all kinds of power plants around the country?

Mark Levy: They are across the board not only for power plants, but for other kinds of emitting facilities, at least in general. This case has an unusual history to it. The enforcement action against Duke Energy was actually brought toward the end of the Clinton administration. When the Bush administration came in they changed the standards prospectively and said that they would not bring any more enforcement actions, but that they would maintain the existing, the pending enforcement actions under the old standard, so it's kind of a jerry-rigged situation. And, in fact, the Bush administration has promulgated new standards which were reviewed in the D.C. Circuit and upheld in part and struck down in part. So in a sense, this case is both very broad and very narrow at the same time.

Darren Samuelsohn: And now this is a case that's about eight years old from when it was originally filed and it's now finally before the Supreme Court. Give us a sense, before the Supreme Court, what justices to watch for, who's going to be key to determining where this case goes?

Mark Levy: That's a very good question and it's a little hard to know the answer. The court, the new Roberts' court with the two new justices, Chief Justice John Roberts and Samuel Alito, has not yet had a Clean Air Act case. Last term it had two Clean Water Act cases. This term it has two Clean Air Act cases, this one and the so-called global warming-greenhouse gases case. So it will be very interesting to see what the new justices think about the environmental interpretation in general and the Clean Air Act in particular. Last term was not particularly a good one for the business community and the two environmental, the two Clean Water Act cases. So we'll see if this term is better.

Darren Samuelsohn: Is it as simple as to say that Justices Roberts and Alito line up with Scalia and Clarence Thomas in terms of the conservative faction on the environmental cases? Or is that jumping too far ahead?

Mark Levy: I think it's both jumping too far ahead and too soon. We don't yet know, so time will tell in this case, and the companion case I mentioned on global warming will be very significant indicators. But my own prediction is that you cannot assume that Chief Justice Roberts and Justice Alito are clones of Justices Scalia and Thomas and will, in this area or in others, simply go down the party line. And there are several cases this term in addition to the environmental cases that will test that and shed light on the question.

Darren Samuelsohn: And in terms of this term we have one other environmental case before the court, correct?

Mark Levy: That's correct. The greenhouse gases case that I mentioned and that's all.

Darren Samuelsohn: This new case, this New Source Review case, it seems like it hinges on, as well, a jurisdictional question and whether or not the 4th Circuit in Richmond, Virginia went too far into ruling that an EPA rule was illegal. People are saying that this case might just be decided on jurisdictional grounds and they won't even get to the merits because it's too confusing. Do you have any sense on that, that this case is maybe too confusing for the Supreme Court? They're not going to get into the details?

Mark Levy: I don't think it's too confusing, although it is a complicated case. The Supreme Court decides many complicated cases and this would be one of another. The jurisdictional issue however is a threshold question. Under the court's jurisprudence it has to first decide whether it has jurisdiction. So it has no discretion about which issue to reach. If it decides that it does not have jurisdiction, that's the end of the case and it cannot and won't reach the merits. The jurisdictional issue arises because the D.C. Circuit, here in Washington, has exclusive jurisdiction over challenges to EPA regulations of nationwide applicability. And the regulation in this case is. The real debate here is whether what the 4th Circuit did is an invalidation of the regulation, which would have to go to the D.C. Circuit, the 4th Circuit wouldn't have jurisdiction, or whether it was an interpretation of the regulation, which could go to the 4th Circuit and is required to be decided by the D.C. Circuit.

Darren Samuelsohn: And a lot of the judges on the Supreme Court, at least four of them I believe, are from the D.C. Circuit originally. So they might want to try and preserve the D.C. Circuit's jurisdictional ...

Mark Levy: They're certainly familiar with the statute. I don't try and handicap the way they're going to vote and I certainly don't think it will be because they want to try and preserve it. If they go off on a jurisdictional ground it will be because they think that's what Congress intended. And the point of the exclusive jurisdiction in the D.C. Circuit is twofold. One is to get nationwide uniformity, definitiveness over these regulations that apply nationwide. And second is to get the answers promptly. Those suits have to be brought within 60 days. As you said, this case has been around for eight years or more. So if the D.C. Circuit should have had it you can see why Congress wanted to root cases like this to one particular federal court of appeals that would develop expertise in the environmental area.

Darren Samuelsohn: Oftentimes in Supreme Court cases you don't really know what the significance of them is until many years down the line. Can you give me any sort of crystal ball, looking ahead 10 or 15 years, when people look back on this case, do you think that this case is going to have much significance?

Mark Levy: It depends in part on how the court decides it. For example, if it decides it's a jurisdictional issue only, I think that will be significant to lawyers, but probably not to others or to the environmental issues generally. If it reaches the merits then it could be more significant. I think the real significance of this case, in the longer term, is not the particular regulations that are at issue here, but the degree of discretion that EPA has. EPA's fundamental argument in this case is that it has discretion, under the so-called Chevron Doctrine, to interpret the terms of the statute and to interpret them differently in different environmental programs, even though the programs use the same statutory terms. So if the EPA has that discretion it will give the agency great latitude going forward. If not, the agency will be more constrained by the usual rules of statutory interpretation.

Darren Samuelsohn: As you mention, I mean the EPA has played interestingly here with the Bush administration because they have been enforcing these Clinton cases, but then they've also agreed not to pursue any new cases, a significant amount of new cases, where there's a lot of antagonism between utilities and the government. And then, as well, EPA has actually promulgated regulations that would impose the 4th Circuit's test. So do you think that this Supreme Court ruling could actually affect EPA regulations going forward?

Mark Levy: It possibly could. If the court says that the Clean Air Act requires certain interpretations that would leave the agency with absolutely no discretion and could have implications for the regulations. But the regulations are not directly at issue in this case.

Darren Samuelsohn: And another thing is, I guess, when we step back and look at this from really high up, what's the pollution reduction impact of these cases? And Jon Gruden, who's a top Justice Department official, last week he was talking about the cases and he said that the settlements that have been bought from the Clinton cases have yielded about I think it was one million tons of reduced NOX, SOX and particulate matter pollution from these cases that have been settled. Does that sound to you like we've gotten a good bang for our buck in terms of taxpayer dollars?

Mark Levy: I can't really debate the numbers with Jon. I have no reason to doubt what he said. I simply don't know, but I think the issue is more complicated than that. The first of all, the Clinton administration and the Bush administration had different general approaches, regulatory approaches to this problem. So the question is not how much was saved? The question really, at bottom, is which one would do a better job? It may be that under the Bush administration's position even more might have been saved. The other question, as always, is cost. How much pollution is reduced for what expenditure of money? The Clinton administration approach, under which these enforcement actions were brought, clearly will require companies to expend more resources to bring their plants into compliance with what the Clinton administration said was the requirements of the Clean Air Act. So how much bang for the buck is the other question in these cases. And I don't think there's any empirical way to test that since not both of the programs have been in place.

Darren Samuelsohn: The EPA has issued regulations since these cases were filed, the Clean the Air Interstate Rules for the whole eastern United States. And some people say that actually forces emission reductions even more so than these lawsuits.

Mark Levy: That's a very good point. There are a host of regulatory programs. That one, there are cap-and-trade programs. So it's very hard to know what reductions, what results follow from a particular program. And it's very important to keep in mind, and the court needs to keep in mind that the prevention of significant deterioration program at issue in this case is only one of many that are in play to reduce pollution in the country. So it is not simply a question of saying what's the best answer and therefore the statute must require it. The question rather is does this particular statute, with its approach to pollution reduction, require what the parties say in this case?

Darren Samuelsohn: Care to make a prediction what the Supreme Court's going to do?

Mark Levy: Never. If I could do that I don't think I'd be practicing law.

Darren Samuelsohn: Very good. Well, Mark, thanks for coming on the program. I look forward to the arguments. Thank you so much.

Mark Levy: Thank you, Darren, my pleasure.

Darren Samuelsohn: Until next time, this is Darren Samuelsohn for another edition of OnPoint. Thanks for watching.

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