Environmental Law Matters

The Supreme Court handed the Obama administration a victory on Tuesday, April 29, 2014, when it injected new life into an Environmental Protection Agency rule targeting air pollution that drifts across state borders. EPA struggled for many years to carry out a Clean Air Act directive to protect downwind states from pollution generated in other states (the "Good Neighbor Provision"). In 2011, EPA enacted a set of rules regulating pollutants generated from coal-fired plants that drift across state lines (the "Transport Rule"). The Transport Rule established a program for allocation of emission reductions among upwind states to improve air quality in polluted downwind areas. The Transport Rule applies in large part to pollutants generated in 28 Midwestern and Appalachian states and drifting to the East Coast. A coalition of industry groups and upwind states challenged the EPA's Transport Rule and prevailed in the lower courts. In a 6-to-2 ruling, the Supreme Court reversed the D.C. Circuit Court and upheld EPA's authority to regulate air pollutants that drift across state lines. The Court noted that the Clean Air Act's Good Neighbor Provision delegates authority to EPA to determine how to allocate among multiple contributing upwind states responsibility for a downwind state's pollution. The Court concluded that EPA's Transport Rule was a permissible construction of the Clear Air Act's Good Neighbor Provision. The Court further held that eliminating amounts of pollution that could cost-effectively be reduced was an efficient and equitable solution to the allocation problem Congress's Good Neighbor Provision required EPA to address. EPA administrator Gina McCarthy hailed the decision as a "resounding victory for public health and a key component of EPA's efforts to make sure all Americans have clean air to breath." Opponents of the Transport Rule denounced the decision and believe EPA's application and enforcement of the Transport Rule will drive up energy costs and will threaten energy sector jobs.