Court may back EPA air pollution rule

Dec 11 - USA TODAY

States in the Midwest and South whose polluted air affects those in the Northeast and Mid-Atlantic may have to deal with a federally imposed solution, a slim majority of Supreme Court justices appeared to indicate Tuesday.

While the court was divided over the method and timing behind the Environmental Protection Agency's rule on cross-state air pollution, more support was voiced for federal authority than for the demands of "upwind" states and industries.

At issue is whether the EPA acted before states could come up with their own emissions-control plans, and whether its emphasis on cost controls would cause some states to do more and others less, regardless of their share of the offending pollution.

The court's liberal judges clearly sided with the federal government. Forcing the EPA to define each state's "significant contribution" to the problem before devising a regional solution would be impossible, Justice Stephen Breyer said, because "it depends upon where the wind blows, and that changes all the time."

Using cost-effectiveness to apportion the burden makes sense, Justice Elena Kagan said, because "the states that are required to do more ... haven't done much already."

With Justice Samuel Alito recused for unspecified reasons, the court's other four conservatives would need to rule against the EPA to uphold an appeals court's ruling that struck down the "good neighbor" rule. Justice Antonin Scalia clearly denounced the EPA rule, but others -- notably Justice Anthony Kennedy -- appeared open to both sides.

Still, Scalia and Chief Justice John Roberts argued that the EPA asked states to do the impossible, then imposed an unfair solution.

Peter Keisler, representing power companies and associations, said the EPA's plan offers no sensible link between a state's share of the pollution and its share of the remediation. "The entire driver is cost," he said.

To define "significant" contributions to air pollution, the justices tried to find analogies in hypothetical situations, from shooting baskets to donating money. Just as two states' contributions may not be equal, Roberts said, a missed layup may be more important than a missed shot at the buzzer from half-court.

Congress devised the Clean Air Act a half-century ago and has amended it several times since, but still the implementation falls either to the states or the regulatory agency.

Under the EPA's rule, 28 upwind states would have to slash ozone and fine-particle emissions; 24 states urged the justices to uphold the lower-court ruling striking down the rule, and nine states and six cities asked them to reverse that decision.

The EPA blames exposure to ozone and fine particles in the air for one in 20 U.S. deaths and 90,000 hospital admissions.

Attorneys for the objecting states and industries argued that the EPA was imposing a one-size-fits-all solution on the states before they could devise their own plans. As a result, Texas solicitor general Jonathan Mitchell said, "They have to overshoot ... and over-regulate."

But Justice Sonia Sotomayor said a federal plan just advances the ball; states can "duke it out with them."

Charlie Riedel, AP

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