The specter of federal air regulation for cross-state air pollution has risen once more. On June 24, 2013, the U.S. Supreme Court agreed to review an appeals court rejection of EPA’s Cross-State Air Pollution Rule (CSPAR). An earlier SACE blog covered the history of CSPAR right up until it was struck down by the U.S. Court of Appeals for the District of Columbia in August of 2012. Thankfully the Supreme Court has agreed to hear the CSAPR case, which gives EPA one last chance at resurrecting CSAPR instead of being forced to return back to the regulatory drawing board.
In January 2013, the D.C. Circuit denied EPA’s petition for a rehearing of the August 2012 decision, leaving the Supreme Court as EPA’s only hope for reinstating CSAPR. In it’s petition to the Supreme Court EPA asserted that the D.C. Circuit decision made “a series of fundamental errors that, if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.” It would seem that the Supreme Court agreed with EPA, at least to the extent that the Court finds the controversy compelling enough to take under consideration.
This recent Supreme Court decision comes after nine states, five cities and the District of Columbia filed briefs in support of the petitions filed by EPA and environmental groups challenging a lower court’s ruling that CSPAR exceeded EPA’s authority under the Clean Air Act. The Mississippi Public Service Commission was one of the groups who filed briefs in opposition to a Supreme Court review of the D.C. Circuit opinion, along with fourteen states and two cities. When the Supreme Court hears the case it will focus on three questions: 1) whether the Court of Appeals lacked jurisdiction for part of its decision; 2) whether states can wait to adopt State Implementation Plans (SIPs) for controlling cross-state pollution until after EPA quantifies their interstate pollution obligations; 3) whether EPA can consider the cost-effectiveness of cross-state pollution reductions.
Although it’s far too early to predict any outcome from the Supreme Court, some have highlighted the Supreme Court’s history of upholding EPA rules after initially agreeing to hear the case. We will continue to track the fate of CSAPR, the friendly ghost of cross-state air regulation. The Supreme Court isn’t expected to hear the case and come to a decision until July 2014. If the Supreme Court decides in favor of reinstating CSAPR, we will be one step closer to cleaning up the air in our downwind, Southeastern states. As we all know, cleaner air means healthier communities and implementation of CSAPR is expected to save thousands of lives each year. If reinstated, CSAPR is expected to yield $120 to $280 billion in annual health and environmental benefits, including the value of avoiding 13,000 to 34,000 premature deaths.
