States, cities ask Supreme Court to review cross-state air pollution ruling

Posted: Apr 26, 2013

Written by

Jeremy P. Jacobs, Greenwire
Cross state air pollution

Nine states, five cities and the District of Columbia yesterday urged the Supreme Court to grant U.S. EPA's request to review a lower court decision that throw out its regulations for air pollution that drifts across state lines.

Led by New York Attorney General Eric Schneiderman (D), the local officials filed a brief in support of petitions from EPA and environmental groups challenging a August 2012 ruling from the U.S. Court of Appeals for the District of Columbia Circuit.

In a 2-1 vote, the panel remanded EPA's Cross-State Air Pollution Rule, or CSAPR, to the agency and asked it to try again (Greenwire, Aug. 21, 2012).

Schneiderman said the D.C. Circuit's ruling jeopardized his constituents' health.

"We have no way of controlling the amount of the dirty air that flows into New York from out-of-state power plants and we need federal action to stop this pollution," he said in a statement. "Our coalition is urging the Supreme Court to review this matter and reinstate sensible and legal EPA rules that will help stem the tide of interstate pollution -- and protect New Yorkers' air and lungs."

The D.C. Circuit held that EPA had gone too far because it could have forced states to cut pollution by more than the amount that crosses state lines.

"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," 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 court also held that EPA didn't grant enough discretion for states to draw up their own implementation plans.

The court also instructed EPA to continue the George W. Bush-era Clean Air Interstate Rule, or CAIR. The D.C. Circuit has also ruled against those regulations, holding in 2008 that it did not go far enough to protect public health.

In EPA's petition, Solicitor General Donald Verrilli said that the D.C. Circuit's 2012 ruling will have "serious adverse consequences for air quality" (Greenwire, April 1).

Schneiderman and the local officials argue that CSAPR would yield up to $17 billion in health benefits and prevent approximately 2,000 premature deaths.

In addition to New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, North Carolina, Rhode Island, Vermont and the District of Columbia signed the brief. The cities were Bridgeport, Conn.; Chicago; New York City; Philadelphia; and Baltimore's mayor and city council.

The Supreme Court will likely consider whether to grant EPA's petition in the coming months. It takes four votes from justices to take up a case.

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