The Washington Post

Supreme Court upholds EPA rule limiting cross-state pollution

Smoke rises from the Colstrip Steam Electric Station, a coal burning power plant in in Colstrip, Mont. On Tuesday, the Supreme Court handed the Obama administration an important victory in its effort to reduce power plant pollution that contributes to unhealthy air in neighboring states. (Matt Brown/Associated Press)

The Supreme Court on Tuesday resurrected an Environmental Protection Agency rule targeting air pollution that drifts across state borders, handing the Obama administration a victory on one of its major environmental efforts.

The agency for years, under two administrations, has struggled to carry out a directive under the federal Clean Air Act to protect downwind states from pollution generated in other states, mostly from coal-fired power plants. The EPA’s rules from 2011 were challenged by a coalition of upwind states and industry, which prevailed in lower courts.

But the Supreme Court ruled 6 to 2 that the latest effort could be implemented, with Justice Ruth Bader Ginsburg writing for the majority that the agency must have leeway to confront the “complex challenge” of interstate pollution.

“Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind,” she wrote. “The overlapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.”

Ginsburg was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justices Antonin Scalia and Clarence Thomas issued a scathing dissent, which Scalia read in part from the bench, and Justice Samuel A. Alito Jr. recused himself from the case.

EPA Administrator Gina McCarthy called the ruling “a resounding victory for public health and a key component” of the agency’s effort to “make sure all Americans have clean air to breathe.” She said the court’s decision underscored the importance of basing clean air rules “on strong legal foundations and sound science,” declaring it a big win and “a proud day for the agency.”

Richard Lazarus, an environmental law professor at Harvard, called the cross-state pollution rule “one of the most significant rules ever” promulgated by the EPA, and supporters said the cost of carrying it out would be more than offset by health benefits.

But opponents of the rule said the majority decision rewarded the EPA for a heavy-handed approach that disregarded the legitimate concerns of the 27 states affected.

Hal Quinn, president of the National Mining Association, said his organization “is disappointed in the outcome and gravely concerned with the latitude afforded the EPA to preempt states before they have had a reasonable chance to act.”

The industry fought the EPA’s attempt to regulate sulfur and nitrogen gases for decades — previous rules promulgated during the George W. Bush administration also were rejected — culminating in a years-long battle during the Obama administration.

Trip Van Noppen, president of Earthjustice, a nonprofit environmental group that helped argue the case, said people “who live downwind from this deadly pollution have a right to breathe air that doesn’t sicken and kill them.”

In determining how much individual upwind states should be required to reduce their emissions, the EPA’s interpretation of the law allows for several factors to be considered, including what it would cost and how much the state has done to cut pollution.

But a divided panel of the U.S. Court of Appeals for the D.C. Circuit disagreed with this approach and said the reductions must be proportional to the state’s share of responsibility for downwind problems.

Ginsburg said, however, that the realities of interstate air pollution “are not so simple.” The EPA was within its power to design a different approach, she said.

The agency was being more efficient and equitable, she said, enacting a rule that “subjects to stricter regulation those states that have done relatively less in the past to control their pollution.”

In his dissent, Scalia agreed that might be true. The problem, he said, is that there is “zero” in the law that allows such an approach.

“EPA’s utterly fanciful ‘from each according to its ability’ construction sacrifices democratically adopted text to bureaucratically favored policy,” he wrote.

He called the majority’s opinion pulled from thin air —“Look, Ma, no hands!” — and said there was a price for such pragmatism.

The case, Scalia said from the bench, illustrates “the major problem that many citizens have with the federal government these days: that they are governed not so much by their elected representatives as by an unelected bureaucracy operating under vague statutory standards.”

Ginsburg had the last word, however, and it came from the Gospel according to John:

“The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.”

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
Darryl Fears has worked at The Washington Post for more than a decade, mostly as a reporter on the National staff. He currently covers the environment, focusing on the Chesapeake Bay and issues affecting wildlife.

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