In an order issued Monday, June 24, the Supreme Court granted certiorari to review the D.C. Circuit’s 2012 decision in EME Homer City Generation LP v. EPA, 696 F.3d 7 (D.C. Cir. 2012), which vacated the Cross-State Air Pollution Rule (also known as the Transport Rule). The U.S. Environmental Protection Agency (USEPA) petition for review is limited to three challenges: whether the D.C. Circuit lacked jurisdiction to hear the case initially; whether states can avoid incorporating cross-state pollution prohibitions into their state implementation plans (SIPs) until after USEPA specifies the state’s obligation; and whether cost should be considered when determining a state’s contribution to pollution in a downwind state.

The Transport Rule, codified at 42 U.S.C. § 7410(2)(d)(i)(I), is intended to address the practical reality that pollution produced elsewhere can seriously compromise a downwind state’s efforts to comply with USEPA’s National Ambient Air Quality Standards (NAAQS). Proponents of the regulation argue that failing to consider – and hold responsible – the state producing the migrating pollution unfairly burdens downwind states with increased compliance costs and efforts. The Transport Rule originated in response to the D.C. Circuit’s 2008 remand of the Clean Air Interstate Rule in North Carolina v. EPA, 550 F.3d 1176 (D.C. Cir. 2008), and created pollution controls based on air quality and cost. In a fact sheet published earlier this year, the EPA predicted the Transport Rule would annually prevent up to 34,000 premature deaths, 1.8 million missed days of work or school, and 19,000 hospital and emergency room visits by 2014.

As well-intentioned as the rule may have been, the D.C. Circuit found USEPA’s implementation of the Transport Rule exceeded the agency’s statutory authority under the Clean Air Act by: (1) potentially requiring upwind states to reduce emissions by more than their fair share; and (2) failing to give states a chance to implement emissions reductions before USEPA imposed its own limits via federal implementation plans (FIPs). With respect to costs, the D.C. Circuit noted USEPA may “rely on cost-effectiveness factors in order to allow some upwind States to do less than their full fair share” but not more, which would result in the state “necessarily being forced to clean up another upwind State's share of the mess in the downwind State.” EME Homer City, 696 F.3d at 27. Meanwhile, D.C. Circuit Judge Judith Rogers penned a lengthy dissent in which she argued the majority overstepped the court’s jurisdiction and ignored both the text of the Clean Air Act and the court’s own precedent in interpreting the statute.

The Supreme Court consolidated USEPA’s petition with one brought by the American Lung Association, and will allow one hour for oral argument. The Court will hear EPA v. EME Homer City Generation LP, U.S., No. 12-1182, during its next term in October, with a decision likely sometime in 2014.  

Brian J. Willett