[y66]

From the Supreme Court blog

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Like many major regulatory disputes that reach the Supreme Court, this fight over the “good neighbor” policy on downward flow of upwind air pollution has layer upon layer of legal, scientific, economic, and mathematical complexity. The Court’s chore, though, is basically focused on just what Congress meant in 1990 when it toughened the “good neighbor” policy.

That is a task of interpreting the language of the statute, and determining whose interpretation of that should be treated as controlling. The crucial phrase that needs to be interpreted is the mandate that states may not “significantly contribute” to their neighbors’ inability to meet air quality standards. Since Congress did not define those words, the Court must initially decide whether it is the EPA’s power, in the first instance, to do so, or whether a reviewing court has a largely open-ended option of deciding what it means. And that is something that the Court probably has to do before it might move on to the merits.

If the Court were to view that mandate as the EPA does, it would see the 1990 revision as a considerable enhancement of the EPA’s authority to decide (1) whether a state plan to control downwind pollution is adequate, and, (2), if a state plan is flawed, the scope of the EPA’s duty — to require the states to revise their plans, or to devise one on its own.

If, however, the Court were to view it as the challengers to the EPA do, the phrase must not be read to disrupt the basic approach of the Clean Air Act — that is, sequential roles for the EPA, to devise air quality standards, and then for the states, having been given notice if they fall short, to draft the necessary revisions. The Act, the challengers have insisted, surely did not allow the EPA to find fault with upwind states, and then fail to let them respond before asserting a right to resolve the matter on its own, fudging each state’s responsibility.

The arguments for and against the authority of the D.C. Circuit to have decided the issues that are now before the Court have some of the appearance of a fallback option for the Court. If the process of interpreting the statute winds up being a doomed pursuit, one incapable of resolution without undertaking to write something into the Act that is not there, the Court might be tempted to find that the D.C. Circuit acted prematurely in taking on the protest case. That, of course, probably would leave the Transport Rule in effect — but it might also be a signal that perhaps Congress should be the one to sort out the EPA’s role.

From Slate article:

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The Supreme Court will hear oral arguments Tuesday in a case about what the Environmental Protection Agency can do to keep states from spewing pollution into their neighbors’ air. EPA v. EME Homer City Generation arises from the “good neighbor” provision of the Clean Air Act. In that provision, Congress gave power to the EPA to reduce the emissions of states that “contribute significantly” to the inability of states downwind of them to meet the law’s standards for air quality. Connecticut, for example, has polluting neighbors: A congressional report found that even if Connecticut turned off every emissions source in the state, pollution from other states would make it fail the test set by federal ozone standards.

The EPA’s “good neighbor” regulations, which went into effect in August of 2011, have two steps. First, the agency determines whether an upwind state is responsible for at least 1 percent of any downwind state’s allotted amount for a pollutant. Virtually every upwind state the EPA has studied falls into this category. Second, the EPA imposes on every one of these upwind states the same elaborate set of rules, with the goal of drastically reducing their total emissions.

Fourteen upwind states—most prominently Texas—have challenged this process (which is called the Transport Rule). They claim that the EPA exceeded the power Congress delegated to it. They’re irked by the fact that all upwind states got the same federal regulations, whether they are a minor polluter or a major one. The states further object that the EPA imposed its rule without first giving each state the opportunity to develop its own regulations.

In a 2–1 decision, a panel of judges on the U.S. Court of Appeals for the D.C. Circuit agreed with the states. They found that the Transport Rule exceeded the power Congress delegated to the EPA. They also said that in order to comply with the statute, the EPA can’t implement its regulations until it has shown exactly how much pollution each upwind state contributes to its neighbors, and given each state a chance to develop its own regulations.

On the surface, this case is simply about interpreting statutory language. The D.C. Circuit reads the statute to empower the EPA to regulate only that portion of upwind state pollution that qualifies as a “significant contribution.” The EPA reads the statute as giving it the power to regulate the total emissions of any upwind state.

The D.C. Circuit’s reading of the statute may be the more natural one. But in the past, the EPA’s interpretation would probably have been close enough to win in court. Since a major Supreme Court ruling in 1984 (about the Clean Air Act, as it happens), the general rule for courts has been that if Congress writes a law that gives power to an agency, and some of the statute’s language is ambiguous, judges defer to the agency’s interpretation of the statute. The idea is that the agency has all the expertise and experience. Take air quality measurements, for example. Contrary to the D.C. Circuit’s implicit assumption, determining exactly how much each state is contributing to other states’ pollution is borderline impossible. The pollution pattern for each state is a tangle of interconnected parts that change every day in unpredictable ways. Pinning down an exact contribution from each state is literally like chasing the wind.

Also, from a cost-benefit standpoint, the EPA’s regulations make sense. The EPA is right to claim that the only way to effectively reduce pollution in downwind states is to reduce the collective emissions of all the upwind states. The agency also set its regulations at cost-effective levels that get the most pollution reduction for the money. The D.C. Circuit’s approach would make it harder and more expensive to reduce pollution.

These practical considerations, however, seem to be beside the point for the D.C. Circuit. The court is second in prestige only to the Supreme Court, and wields special power in environmental law cases. Many are speculating that it is actively curtailing the power of the EPA by giving the agency less deference. The D.C. judges themselves have shown frustration at the way the agencies deal with congressional statutes. As Judge David Tatel quipped in a 2009 speech, many agencies promulgate regulations without giving the congressional statutes “so much as a quick skim.”

The general opinion is that the Supreme Court will overturn the D.C. Circuit and support the EPA. But even if the Supreme Court allows for tighter federal control of pollution this time, the war over agency discretion may just be starting.

[Winstonm]

In states' rights questions, isn't it 3-3 going to the bottom of the ninth?

[kenberg]

I weigh in on many things where my knowledge is not great. But here it is zip. I don't even have a solid opinion on what should be the result. One one side, controlling pollution is obviously good. On the other side, it is reasonable to rein in an agency that writes rules as if the law is different from what it is. I am not prepared to argue whether this is or is or is not what is happening.

[y66]

A good day for the EPA?

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It is rare these days in Washington for the Environmental Protection Agency to have a good day, with important figures showing sympathy for the difficulty of its task. But the EPA could walk away from Tuesday’s oral arguments on how the agency acted to limit foul air from floating from state to state, with a sense that maybe it did it about right. As usual, it faced some criticism, true, but this time that did not dominate.

At issue is how the EPA can carry out the task assigned by Congress of making sure that states which generate pollution that then impairs the quality of air for their neighbors can be held accountable and made to do something about it. As the Court explored that issue, it became increasingly apparent that the Justices appreciated that, because it is not possible to blame State A or State B in precise portions for endangering the environment in State C or State D, maybe the EPA should be allowed a healthy amount of discretion to devise a plan.

Deputy U.S. Solicitor General Malcolm L. Stewart, defending the EPA’s so-called “Transport Rule,” helped his case a good deal by suggesting that what EPA had to do was to answer a question like the one a basketball coach might get, on why his team lost a close game. Was it that missed layup, or was it that missed desperation shot at the buzzer, which caused the loss?

Both, he suggested, had “contributed significantly” to the loss, so that is what the coach had to confront. The EPA, under the Clean Air Act, has the similarly difficult task of deciding which state’s transported pollution across a border “contributed significantly” to a neighbor state’s inability to satisfy a federal clean air standard. The EPA came up with a cost-based formula, apportioning an “upwind” state’s duty to control emissions from power plants within its own borders according to how feasibly it could reduce the cross-state impact.

A group of upwind states that object to the EPA’s approach complains that it has no authority to impose such obligations on a state without first giving each state both notice of its share of blame and a chance to devise control strategies on their own. Texas’s state solicitor general, Jonathan F. Mitchell, put that argument before the Court.

But a group of private firms, mainly power companies, along with a labor union, complains that the Clean Air Act nowhere gives the EPA the authority to devise a cost-based method of calculating state control obligations, because that makes some states responsible for more than their share of transported pollution. Washington attorney Peter Keisler offered that argument to the Justices.

As the argument unfolded, it appeared that one or both of those challenges got a sympathetic hearing from Justice Antonin Scalia — but, in the main, only from him. The two attorneys for the challengers were reminded repeatedly by the Justices that the Act did not lay down hard-and-fast directives to the EPA on how to devise control strategies, so the agency was left to come up with those using its expertise.

Chief Justice John G. Roberts, Jr., identified what may be the weakest point in the EPA’s defense of its rule: that is, that it had to go ahead and spell out for each state what new steps it must take to limit cross-state pollution, without first giving the states a chance to devise plans to do so on their own. Roberts wondered what the EPA would tell a state if it wanted to take action, but had no idea what EPA’s ultimate control strategy would turn out to be.

Deputy Solicitor General Stewart said it was the Act itself that imposed on the EPA the duty to fashion a plan that helps control downwind pollution transport, when the states fail to do so. The Chief Justice did not press the point at length, however, and his other comments suggested that he, too, had some sympathy for the EPA’s task.

When the lawyer for the state and local government challengers protested that the EPA had forced the states to merely guess at what their obligations would be to be “good neighbors” toward other states, the Chief Justice conceded that the states faced a difficult task, but he commented that that is what the law seemed to require. In fact, Roberts said, if the EPA had “taken a different view,” it might have violated the Act.

A good day for the EPA ... and anyone else who gives a hoot about clean air.

[mike777]

As I understand it the issue is a matter of law not clean air.

I understand the argument is the EPA exceeded the law by Congress but the law is bad or silly so it is ok for the EPA to do what it thinks best.

[blackshoe]

"When the Law is an Ass, the best thing to do is ignore it." -- Samuel Adams

The problem with this is that Sam Adams was a radical revolutionary, so this idea is at best suspect, unless we want to be radical revolutionaries ourselves. Also, if ignoring the law is bad for citizens to do, then it better damn well be bad for the government to do.