The Supreme Court upheld EPA’s air pollution rule that regulates cross-border emissions of 28 upwind states to address downwind states’ compliance with air quality standards.

On April 29, 2014, the U.S. Supreme Court reinstated the Environmental Protection Agency’s (EPA) Cross-State Air Pollution Rule (CSAPR), reversing an August 2012 decision by the U.S. Court of Appeals for the District of Columbia Circuit.  The Supreme Court’s 6-2 decision ruled EPA’s allocation of emissions reductions among upwind states as a permissible, workable, and equitable interpretation of the Clean Air Act’s (CAA) “Good Neighbor” provision to regulate transport of sulfur dioxide and nitrogen oxide emissions across state borders.

CSAPR Emissions Reduction Estimates (EPA)

EPA finalized CSAPR in July 2011 pursuant to the CAA Good Neighbor provision which addresses interstate transport of air pollution that affects downwind states’ ability to comply with National Ambient Air Quality Standards (NAAQS).  CSAPR regulates ozone and fine particle emissions of 28 upwind states for downwind attainment of NAAQS.  CAA requires states to submit a State Implementation Plan (SIP) within three years of issuance of new or revised NAAQS and requires EPA to issue a Federal Implementation Plan (FIP) if a SIP is found inadequate.

In August 2012, the D.C. Circuit court vacated CSAPR, ruling that EPA exceeded its statutory authority under the CAA.  The D.C. Circuit court held that EPA allocated emissions budgets through FIPs, foregoing its statutory duty to give upwind states a reasonable opportunity to allocate emissions budgets among in-state sources through SIPs.  It also held that EPA inappropriately interpreted the statute by treating all regulated upwind states alike, setting uniform cost thresholds that could force some upwind states to reduce emissions by more than their fair share; the Good Neighbor provision requires upwind states to reduce emissions in a manner proportional to their contribution.

The Supreme Court ruling held that CAA does not direct that states be given a second opportunity to file a SIP after EPA quantified interstate pollution obligations.  It also concluded that the Good Neighbor provision does not require EPA to disregard costs and exclusively consider each upwind state’s physically proportionate responsibility for each downwind air quality issue.

April 30, 2014 via Energy Solutions Forum.

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