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Sunday, December 08, 2013

Environment - This week, the SCOTUS will hear argument "on two joined cases, testing the federal government’s authority to require states to take action to prevent their air pollution from fouling the air in neighboring states"

Lyle Denniston of SCOTUSblog has a very lengthy argument preview on the two cases re EME Homer City Generation that have been joined and will be argued Tuesday. A sample:

Like many major regulatory disputes that reach the Supreme Court, this fight over the “good neighbor” policy on downward flow of upwind air pollution has layer upon layer of legal, scientific, economic, and mathematical complexity. The Court’s chore, though, is basically focused on just what Congress meant in 1990 when it toughened the “good neighbor” policy.

That is a task of interpreting the language of the statute, and determining whose interpretation of that should be treated as controlling. The crucial phrase that needs to be interpreted is the mandate that states may not “significantly contribute” to their neighbors’ inability to meet air quality standards. Since Congress did not define those words, the Court must initially decide whether it is the EPA’s power, in the first instance, to do so, or whether a reviewing court has a largely open-ended option of deciding what it means. And that is something that the Court probably has to do before it might move on to the merits.

If the Court were to view that mandate as the EPA does, it would see the 1990 revision as a considerable enhancement of the EPA’s authority to decide (1) whether a state plan to control downwind pollution is adequate, and, (2), if a state plan is flawed, the scope of the EPA’s duty — to require the states to revise their plans, or to devise one on its own.

If, however, the Court were to view it as the challengers to the EPA do, the phrase must not be read to disrupt the basic approach of the Clean Air Act — that is, sequential roles for the EPA, to devise air quality standards, and then for the states, having been given notice if they fall short, to draft the necessary revisions. The Act, the challengers have insisted, surely did not allow the EPA to find fault with upwind states, and then fail to let them respond before asserting a right to resolve the matter on its own, fudging each state’s responsibility.

Posted by Marcia Oddi on December 8, 2013 01:25 PM
Posted to Environment