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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.
The arguments for and against the authority of the D.C. Circuit to have decided the issues that are now before the Court have some of the appearance of a fallback option for the Court. If the process of interpreting the statute winds up being a doomed pursuit, one incapable of resolution without undertaking to write something into the Act that is not there, the Court might be tempted to find that the D.C. Circuit acted prematurely in taking on the protest case. That, of course, probably would leave the Transport Rule in effect — but it might also be a signal that perhaps Congress should be the one to sort out the EPA’s role.
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.
The arguments for and against the authority of the D.C. Circuit to have decided the issues that are now before the Court have some of the appearance of a fallback option for the Court. If the process of interpreting the statute winds up being a doomed pursuit, one incapable of resolution without undertaking to write something into the Act that is not there, the Court might be tempted to find that the D.C. Circuit acted prematurely in taking on the protest case. That, of course, probably would leave the Transport Rule in effect — but it might also be a signal that perhaps Congress should be the one to sort out the EPA’s role.
From Slate article:
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The Supreme Court will hear oral arguments Tuesday in a case about what the Environmental Protection Agency can do to keep states from spewing pollution into their neighbors’ air. EPA v. EME Homer City Generation arises from the “good neighbor” provision of the Clean Air Act. In that provision, Congress gave power to the EPA to reduce the emissions of states that “contribute significantly” to the inability of states downwind of them to meet the law’s standards for air quality. Connecticut, for example, has polluting neighbors: A congressional report found that even if Connecticut turned off every emissions source in the state, pollution from other states would make it fail the test set by federal ozone standards.
The EPA’s “good neighbor” regulations, which went into effect in August of 2011, have two steps. First, the agency determines whether an upwind state is responsible for at least 1 percent of any downwind state’s allotted amount for a pollutant. Virtually every upwind state the EPA has studied falls into this category. Second, the EPA imposes on every one of these upwind states the same elaborate set of rules, with the goal of drastically reducing their total emissions.
Fourteen upwind states—most prominently Texas—have challenged this process (which is called the Transport Rule). They claim that the EPA exceeded the power Congress delegated to it. They’re irked by the fact that all upwind states got the same federal regulations, whether they are a minor polluter or a major one. The states further object that the EPA imposed its rule without first giving each state the opportunity to develop its own regulations.
In a 2–1 decision, a panel of judges on the U.S. Court of Appeals for the D.C. Circuit agreed with the states. They found that the Transport Rule exceeded the power Congress delegated to the EPA. They also said that in order to comply with the statute, the EPA can’t implement its regulations until it has shown exactly how much pollution each upwind state contributes to its neighbors, and given each state a chance to develop its own regulations.
On the surface, this case is simply about interpreting statutory language. The D.C. Circuit reads the statute to empower the EPA to regulate only that portion of upwind state pollution that qualifies as a “significant contribution.” The EPA reads the statute as giving it the power to regulate the total emissions of any upwind state.
The D.C. Circuit’s reading of the statute may be the more natural one. But in the past, the EPA’s interpretation would probably have been close enough to win in court. Since a major Supreme Court ruling in 1984 (about the Clean Air Act, as it happens), the general rule for courts has been that if Congress writes a law that gives power to an agency, and some of the statute’s language is ambiguous, judges defer to the agency’s interpretation of the statute. The idea is that the agency has all the expertise and experience. Take air quality measurements, for example. Contrary to the D.C. Circuit’s implicit assumption, determining exactly how much each state is contributing to other states’ pollution is borderline impossible. The pollution pattern for each state is a tangle of interconnected parts that change every day in unpredictable ways. Pinning down an exact contribution from each state is literally like chasing the wind.
Also, from a cost-benefit standpoint, the EPA’s regulations make sense. The EPA is right to claim that the only way to effectively reduce pollution in downwind states is to reduce the collective emissions of all the upwind states. The agency also set its regulations at cost-effective levels that get the most pollution reduction for the money. The D.C. Circuit’s approach would make it harder and more expensive to reduce pollution.
These practical considerations, however, seem to be beside the point for the D.C. Circuit. The court is second in prestige only to the Supreme Court, and wields special power in environmental law cases. Many are speculating that it is actively curtailing the power of the EPA by giving the agency less deference. The D.C. judges themselves have shown frustration at the way the agencies deal with congressional statutes. As Judge David Tatel quipped in a 2009 speech, many agencies promulgate regulations without giving the congressional statutes “so much as a quick skim.”
The general opinion is that the Supreme Court will overturn the D.C. Circuit and support the EPA. But even if the Supreme Court allows for tighter federal control of pollution this time, the war over agency discretion may just be starting.
The EPA’s “good neighbor” regulations, which went into effect in August of 2011, have two steps. First, the agency determines whether an upwind state is responsible for at least 1 percent of any downwind state’s allotted amount for a pollutant. Virtually every upwind state the EPA has studied falls into this category. Second, the EPA imposes on every one of these upwind states the same elaborate set of rules, with the goal of drastically reducing their total emissions.
Fourteen upwind states—most prominently Texas—have challenged this process (which is called the Transport Rule). They claim that the EPA exceeded the power Congress delegated to it. They’re irked by the fact that all upwind states got the same federal regulations, whether they are a minor polluter or a major one. The states further object that the EPA imposed its rule without first giving each state the opportunity to develop its own regulations.
In a 2–1 decision, a panel of judges on the U.S. Court of Appeals for the D.C. Circuit agreed with the states. They found that the Transport Rule exceeded the power Congress delegated to the EPA. They also said that in order to comply with the statute, the EPA can’t implement its regulations until it has shown exactly how much pollution each upwind state contributes to its neighbors, and given each state a chance to develop its own regulations.
On the surface, this case is simply about interpreting statutory language. The D.C. Circuit reads the statute to empower the EPA to regulate only that portion of upwind state pollution that qualifies as a “significant contribution.” The EPA reads the statute as giving it the power to regulate the total emissions of any upwind state.
The D.C. Circuit’s reading of the statute may be the more natural one. But in the past, the EPA’s interpretation would probably have been close enough to win in court. Since a major Supreme Court ruling in 1984 (about the Clean Air Act, as it happens), the general rule for courts has been that if Congress writes a law that gives power to an agency, and some of the statute’s language is ambiguous, judges defer to the agency’s interpretation of the statute. The idea is that the agency has all the expertise and experience. Take air quality measurements, for example. Contrary to the D.C. Circuit’s implicit assumption, determining exactly how much each state is contributing to other states’ pollution is borderline impossible. The pollution pattern for each state is a tangle of interconnected parts that change every day in unpredictable ways. Pinning down an exact contribution from each state is literally like chasing the wind.
Also, from a cost-benefit standpoint, the EPA’s regulations make sense. The EPA is right to claim that the only way to effectively reduce pollution in downwind states is to reduce the collective emissions of all the upwind states. The agency also set its regulations at cost-effective levels that get the most pollution reduction for the money. The D.C. Circuit’s approach would make it harder and more expensive to reduce pollution.
These practical considerations, however, seem to be beside the point for the D.C. Circuit. The court is second in prestige only to the Supreme Court, and wields special power in environmental law cases. Many are speculating that it is actively curtailing the power of the EPA by giving the agency less deference. The D.C. judges themselves have shown frustration at the way the agencies deal with congressional statutes. As Judge David Tatel quipped in a 2009 speech, many agencies promulgate regulations without giving the congressional statutes “so much as a quick skim.”
The general opinion is that the Supreme Court will overturn the D.C. Circuit and support the EPA. But even if the Supreme Court allows for tighter federal control of pollution this time, the war over agency discretion may just be starting.