Supreme Court Rules EPA can Regulate Cross-State Pollution

Thursday, May 01, 2014
(graphic: Jacob Etter, Moosylvania)

In a major victory for the Obama administration’s environmental policies, the U.S. Supreme Court ruled Tuesday that the Environmental Protection Agency (EPA) has the authority to regulate cross-state air pollution.


The case focused on EPA rules issued in 2011 that were designed to reduce the amount of air pollution, primarily from coal-fired power plants, that drifts from 28 Midwestern and Appalachian states to the East Coast.


Industry opponents and officials from upwind states challenged the rules in federal court, which overturned them. But the Supreme Court, in an opinion by Justice Ruth Bader Ginsburg, ruled 6 to 2 that the regulations were valid and constitutional.


EPA Administrator Gina McCarthy said in a prepared statement that the ruling was “a resounding victory for public health.”


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.”


Republicans from states that rely on coal for energy production criticized the decision.

“This is just the latest blow to jobs and affordable energy,” Representative Fred Upton (R-Michigan), chairman of the House Energy and Commerce Committee, and Representative Edward Whitfield (R-Kentucky) said in a statement. “The administration’s overreaching regulation will drive up energy costs and threaten jobs and electric reliability. We cannot allow EPA’s aggressive regulatory expansion to go unchecked. We will continue our oversight of the agency and our efforts to protect American families and workers from EPA’s onslaught of costly rules,” they added.


In addition to Ginsburg, the majority included Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Justices Antonin Scalia and Clarence Thomas dissented, while Justice Samuel Alito Jr. recused himself from the case.


Scalia, in his dissent, was guilty of a factual blunder rare in Supreme Court history. Dan Farber of LegalPlanet wrote that Scalia “refers to the Court’s earlier decision in American Trucking as involving an effort by EPA to smuggle cost considerations into the statute. But that’s exactly backwards: it was industry that argued for cost considerations and EPA that resisted.  This gaffe is doubly embarrassing because Scalia wrote the opinion in the case, so he should surely remember which side won!”


After Scalia’s mistake was pointed out, the Supreme Court corrected Scalia’s opinion and even rewrote one of his subheads, changing “Plus Ça Change: EPA’s Continuing Quest for Cost-Benefit Authority” to “Our Precedent.”

-Noel Brinkerhoff, David Wallechinsky


To Learn More:

Supreme Court Upholds EPA Rule Limiting Cross-State Pollution (by Robert Barnes and Darryl Fears, Washington Post)

Justices Back Rule Limiting Coal Pollution (by Coral Davenport, New York Times)

More About EPA’s Victory (by San Farer, LegalPlanet)

Justice Scalia Makes Epic Blunder In Supreme Court Opinion (by Sahil Kapur, Talking Points Memo)

Environmental Protection Agency v. EME Homer City Generation (pdf)

Environmental Protection Agency v. EME Homer City Generation (SCOTUS Blog)

Appeals Court Overturns EPA Rule Limiting Cross-State Coal Plant Pollution (by Noel Brinkerhoff, AllGov)


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