Supreme Court cross-state ruling hailed, scorned

Source: Daniel Lippman, E&E reporter • Posted: Wednesday, April 30, 2014

Environmental groups today threw heaps of praise on this morning’s Supreme Court ruling upholding U.S. EPA’s authority to regulate cross-state air pollution, while industry groups and some Republicans said the decision could imperil U.S. energy sources and further federalizes environmental regulation.

Some environmentalists also suggested that the recent string of court rulings supporting EPA make it more likely that the agency’s blockbuster upcoming greenhouse gas regulations might survive inevitable court scrutiny.”Today’s decision offers encouraging signs for a carbon reduction program under the Clean Air Act, including the justices’ willingness to accord deference to EPA’s expertise and reasonable interpretations of a complex statute, and [the] leeway granted EPA to adopt flexible and sensible approaches to cost-effective reductions in air pollution,” John Walke, director of the Clean Air Program at the Natural Resources Defense Council, toldE&ENews PM.

Another positive sign for environmentalists, Walke said, was that the court upheld “EPA’s ability and need to ensure air pollution reductions and federal law enforcement in the face of any states that might not carry out those responsibilities in a timely fashion. All three parallels exist in a carbon pollution program under the Clean Air Act.”

Environmentalists pointed to the health benefits that would accrue because of the lower amounts of soot and smog-causing pollution that travels to downwind states and affects people who live there.

“Affirming the essential structure of the Rule not only will greatly benefit residents of those states whose coal plants are emitting highly dangerous NOx, SO2 and particulate matter, but residents of states downwind from these sources will also see a significant improvement in their air quality,” said David Marshall, senior counsel of the Clean Air Task Force, in a statement.

Industry groups, of course, had a wildly different take on the case.

Attorney Scott Segal, who represents the utility industry at Bracewell & Giuliani in Washington, D.C., said in a statement that the sources of emissions covered by the cross-state rule are already very well controlled, and air emissions of major pollutants have also been steadily declining.

“EPA’s own most recent Clean Air Trends report makes this point crystal clear. Between 1980 and 2012, gross domestic product increased over 100 percent, energy consumption increased almost 30 percent, and U.S. population grew by 38 percent,” Segal said. “But during the same time period, total emissions of the six principal air pollutants fell by almost 70 percent.”

Republicans warned that the decision would allow EPA’s regulatory authority “to go unchecked,” in the words of House Energy and Commerce Chairman Fred Upton (R-Mich.) and Energy and Power Subcommittee Chairman Ed Whitfield (R-Ky.).

“This is just the latest blow to jobs and affordable energy. The administration’s overreaching regulation will drive up energy costs and threaten jobs and electric reliability,” the lawmakers said in a statement.

But on the other side of the aisle, Sen. Barbara Boxer (D-Calif.), chairwoman of the Environment and Public Works Committee, said in a statement the cross-state rule is “a critical public health safeguard” that would protect Americans from deadly pollution from “some of the dirtiest sources.”

Sen. Tom Carper (D-Del.), chairman of the EPW Subcommittee on Clean Air and Nuclear Safety, implied that religious principles supported what EPA was doing on this issue. He said he always tries to live his life by the Golden Rule and treat others the way he would want to be treated.

“The Good Neighbor Rule essentially makes sure states follow the Golden Rule for clean air — making sure we all do our part to clean up air pollution,” Carper said in a statement.

Fred Krupp, the president of Environmental Defense Fund, which was a party to the case, said in a statement that “millions of Americans can breathe easier” because of the ruling. “The Supreme Court’s decision means that our nation can take the necessary steps to ensure healthier and longer lives for the 240 million Americans at risk from power plant smokestack pollution near and far.”

Some industry leaders warned EPA to not take too much encouragement from the Supreme Court’s decision when it formulates its greenhouse gas regulations, due in early June.

“It is difficult to accept that the Supreme Court has allowed the EPA to fully centralize a Clean Air Act program Congress intended for the states, and to do so in a way that is already raising electric reliability concerns for manufacturers,” said Ross Eisenberg, vice president of energy and resources policy at the National Association of Manufacturers, in a statement. “[In] its upcoming greenhouse gas regulations, EPA must work cooperatively with states to ensure that its regulations protect manufacturers’ access to all forms of energy.”

Richard Faulk, a partner at the law firm Hollingsworth LLP and senior director of the Energy and Environment Initiative at George Mason Law School, said in a statement that the decision was “a ringing endorsement of the extraordinary power of federal regulatory agencies to dictate the meaning of federal statutes — even when Congress has given states the primary responsibility of implementing them.”