Cross-State Pollution Rule Revived by Justices

WASHINGTON (CN) - Costs may factor into the determination of emission reductions a state must make to improve air quality in polluted downwind areas, the Supreme Court ruled Tuesday.

At issue is the Cross-State Air Pollution Rule, or Transport Rule, which the Environmental Protection Agency adopted through interpreting the good-neighbor provision of the Clean Air Act (CAA).

The provision instructs states to prohibit in-state sources "from emitting any air pollutant in amounts which will ... contribute significantly" to makes it difficult for downwind states to meet national air quality standards.

Regulators who crafted the Transport Rule concluded that it costs are among the factors that merit consideration in determining the emission reductions an upwind state must make to improve air quality in polluted downwind areas.

But the D.C. Circuit vacated that rule after finding that the good-neighbor provision requires the EPA to consider only each upwind state's physically proportionate responsibility for each downwind state's air quality problem.

The EPA and the American Lung Association appealed the D.C. Circuit ruling, which favored EME Homer City, and the Supreme Court took up the consolidated case last year.

A six-justice majority concluded Tuesday that the "cost-blind construction" is unnecessary.

The ruling considers the state and federal implementation plans, SIPs and FIPs, respectively, necessary for compliance with the national ambient air quality standards, or NAAQS.

"In short, nothing in the statute places EPA under an obligation to provide specific metrics to states before they undertake to fulfill their good neighbor obligations," Justice Ruth Bader Ginsburg wrote for the majority, referring to the good-neighbor provision. "By altering the schedule Congress provided for SIPs and FIPs, the D.C. Circuit stretched out the process. It allowed a delay Congress did not order and placed an information submission obligation on EPA Congress did not impose. The D.C. Circuit, we hold, had no warrant thus to revise the CAA's action-ordering prescriptions."

Though opponents of the rule argue that the cost of preventing emissions "is wholly unrelated to the actual 'amoun[t]' of air pollution an upwind state contributes," Ginsburg said the EPA "cannot avoid the task of choosing which among equal 'amounts' to eliminate."

"The agency has chosen, sensibly in our view, to reduce the amount easier, i.e., less costly, to eradicate, and nothing in the text of the Good Neighbor Provision precludes that choice," Ginsburg wrote.

She added: "Eliminating those amounts that can cost-effectively be reduced is an efficient and equitable solution to the allocation problem the Good Neighbor Provision requires the agency to address."

Justice Samuel Alito took no part in the consideration or decision of the cases.

Justice Antonin Scalia, joined by Justice Clarence Thomas, called the rule "undemocratic" and its justification "feeble" in a 21-page dissent.

"The majority reaches its result ('Look Ma, no hands!') without benefit of text, claiming to have identified a remarkable 'gap' in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis - and then, with no pretended textual justification at all, simply extends cost-benefit analysis beyond the scope of the alleged gap," Scalia wrote (parentheses in original).

"Additionally, the majority relieves EPA of any obligation to announce novel interpretations of the Good Neighbor Provision before the states must submit plans that are required to comply with those interpretations. By according the states primacy in deciding how to attain the governing air-quality standards, the Clean Air Act is pregnant with an obligation for the agency to set those standards before the states can be expected to achieve them. The majority nonetheless approves EPA's promulgation of federal plans implementing good-neighbor benchmarks before the states could conceivably have met those benchmarks on their own.

"I would affirm the judgment of the D.C. Circuit that EPA violated the law both in crafting the Transport Rule and in implementing it."

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