Indiana among states wanting SCOTUS to clear the air on pollution standard

A coalition of 14 states, including Indiana, are headed to the Supreme Court of the United States Dec. 10 to argue that the U.S. Environmental Protection Agency has overstepped its authority, again, in trying to regulate air pollution in upwind states.

At issue is the Cross-State Air Pollution Rule, known as CSAPR or the Transport Rule. This regulation requires upwind states to reduce their power plant emissions that contribute to the ozone and fine particle matter in downwind states.

The 14 states assert the EPA overreached its statutory authority by imposing a federal implementation plan before allowing the states to submit their own implementation plans. Under the terms set by the Clean Air Act, Washington, D.C., and the individual states engage in a regime of cooperative federalism where the federal administration sets the standards then the states offer their proposals for meeting those standards.

The EPA contends it had previously found that the states subject to the Transport Rule had either submitted an inadequate SIP or failed to tender a plan altogether.

“Fundamentally, this case is about federalism and agency consideration of undefined statutory terms,” said Kevin Lyskowski, partner in the Washington, D.C., office of Faegre Baker Daniels. “It’s an interesting and significant case. There’ll be a lot of people looking to see how the Supreme Court rules.”

Neither side disputes that the Clean Air Act employs a regime of cooperative federalism and that states get the first crack to meet the federal standards, Lyskowski said. The disagreement centers about what “first crack” means.

The U.S. Supreme Court has consolidated two cases concerning the Transport Rule, EPA v. EME Homer City Generation, 12-1182, and American Lung Association v. EME Homer City Generation, 12-1183, and is allowing 90 minutes for oral arguments.

Twenty-eight states are subject to the Transport Rule. They have split into two groups with one group supporting the standard and the other group opposing. Fourteen states, led by Texas and including Indiana, are fighting the rule.

The Indiana Attorney General’s Office as the state of Indiana’s lawyer signed on the respondent brief filed by Texas.

“Challenges filed by states are one way federal regulatory actions are tested to determine whether they are valid,” said Bryan Corbin, spokesman for the Indiana Attorney General. “Such challenges are a normal and healthy part of the process and they respectfully bring to the nation’s highest court the question of federal overreach so the Court can decide.”

The Transport Rule was formulated after the U.S. Court of Appeals for the D.C. Circuit found the EPA exceeded its statutory authority with the 2005 Clean Air Interstate Rule.

The court allowed the agency to develop a replacement rule but kept the CAIR in place until a new standard took its place.

Finalized in July 2011, the Transport Rule was immediately challenged. A split U.S. Court of Appeals for the District of Columbia vacated the new rule in August. 2012, finding, again, the EPA had overstepped.

The Court of Appeals agreed that the EPA did not allow the states to develop their own plans for emission reductions. It also held that the Transport Rule could require upwind states to cut their pollution by more than their own contributions to downwind states’ nonattainment.

“I think it’s significant when any court strikes down a federal regulation,” Lyskowski said. “This is a regulation that had broad impact.”

In March 2013, the EPA petitioned the Supreme Court for a writ of certiorari. The agency questioned whether the Court of Appeals had jurisdiction to consider the challenges to CSAPR. It also raised the issues of whether states are excused from reducing emissions until the EPA adopts a new rule and whether the Clean Air Act requires the agency to consider only each upwind state’s proportionate responsibility for each downwind air quality problem.