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Supreme Court Reverses Ruling Giving States Second Chances At Emissions Plans

WASHINGTON, D.C. — (Mealey’s) In a 6-2 ruling, the U.S. Supreme Court on April 29 reversed a District of Columbia Circuit U.S. Court of Appeals decision that states are excused from adopting implementation plans prohibiting emissions that “contribute significantly” to air pollution in other states until after the agency has adopted a rule quantifying each state’s interstate pollution obligations (Environmental Protection Agency v. EME Homer City Generation, et al., No. 12-1182, U.S. Sup.). 

The majority, which comprised Chief Justice John G. Roberts Jr. and Justices Ruth Bader Ginsburg, Elena Kagan, Sonia Sotomayor, Anthony M. Kennedy and Stephen G. Breyer, held that the Clean Air Act (CAA) does not provide states with a second opportunity to file a state implementation plan (SIP) for interstate pollution after the U.S. Environmental Protection Agency has quantified the state’s obligations. 

The plaintiffs, which included EME Homer City Generation L.P. and a number of states, challenged the EPA’s amendments to the CAA for interstate pollution transport requirements in the D.C. Circuit.  Specifically, the plaintiffs contended that the agency abused its authority in enacting the Cross-State Air Pollution Rule, commonly referred to as the Transport Rule, which addressed the emissions of pollutants in 28 upwind states that significantly contribute to downwind states’ problems in attaining or maintaining National Ambient Air Quality Standards (NAAQS) for ozone and fine particulate matter.  For each state subject to the Transport Rule, the EPA had made a finding of whether the state failed to submit an SIP that adequately considered the effects of its emissions on neighboring states. 

The appeals court panel held Aug. 21, 2012, that the Transport Rule was foreclosed by the good neighbor provision of the CAA because the Transport Rule could result in requiring a subject state to reduce emissions below the threshold level for determining whether the state was subject to the rule.  The panel also found that the rule did not sufficiently assure that an upwind state’s emissions reductions were proportional to its share of downwind contribution and that the rule did not assure that the cumulative upwind states’ obligations would be no more than the minimum amount necessary to enable affected downwind areas to meet the NAAQS. 

Quantified Obligation 

The high court majority reversed the Circuit Court’s ruling, explaining that the clear text of the CAA supports the EPA’s position.  Justice Ginsburg wrote for the majority that under the act, the EPA is required to issue a federal implementation plan when an SIP is disapproved. 

The majority also found that the EPA’s cost-effective allocation of emission reductions for upwind states is permissible under the good neighbor provision and that the D.C. Circuit’s wholesale invalidation of the Transport Rule was not justified. 

Justice Antonin Scalia wrote a dissenting opinion in which he stated that he believed “[t]oo many important decisions of the Federal Government are made nowadays by unelected agency officials exercising broad lawmaking authority.” 

“Today, the majority approves that undemocratic revision of the Clean Air Act [the good neighbor provision],” Justice Scalia wrote.  “The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word ‘significantly’ in the statutory text.  That justification is so feeble that today’s majority does not even recite it, much less defend it.  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.” 

Justice Clarence Thomas joined in Justice Scalia’s dissent. 

Justice Samuel Anthony Alito Jr. took no part in consideration of the case. 


The agency is represented by Donald B. Verrilli Jr., Ignacia S. Moreno, Malcolm L. Stewart, Joseph R. Palmore, Jon M. Lipschultz and Norman L. Rave Jr. of the U.S. Department of Justice and Brenda Mallory and Sonja Rodman of the EPA.  All are in Washington. 

New York Attorney General Eric Schneiderman and Barbara D. Underwood, Cecelia C. Chang, Simon Heller, Michael J. Myers and Andrew G. Frank of the New York Attorney General’s Office in New York are counsel for the state.  Connecticut Attorney General George Jepsen in Hartford, Conn., represents Connecticut.  Delaware is represented by Delaware Attorney General Joseph R. Biden III in Wilmington, Del.  Illinois Attorney General Lisa Madigan in Chicago is counsel for the state.  Maryland is represented by Maryland Attorney General Douglas F. Gansler in Baltimore.  Massachusetts Attorney General Martha Coakley in Boston is counsel for the state.  North Carolina is represented by North Carolina Attorney General Roy Cooper in Raleigh, N.C.  Rhode Island Attorney General Peter F. Kilmartin in Providence, R.I., is counsel for the state.  Vermont is represented by Vermont Attorney General William H. Sorrell in Montpelier, Vt.  District of Columbia Attorney General Irvin B. Nathan in Washington is counsel for the district.  The City of Baltimore is represented by City Solicitor George A. Nilson in Baltimore.

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