By Muhammad Iqbal, November 24, 2013
WASHINGTON: The US government's authority to regulate air pollution nationwide, often against the wishes of Republican-leaning states, could face new curbs when the US Supreme Court takes on two high-stakes cases in coming months.
The
cases focus on the broad-ranging power wielded by the US Environmental
Protection Agency (EPA) under the landmark Clean Air Act, first enacted
in 1970.
The law was
envisioned as a cooperative effort between the federal government and
states in which the EPA sets standards but states have to set plans to
comply.
That
flexibility has allowed states which favor looser regulations, like
Texas and Kansas, to resist with the support of industry groups like the
US Chamber of Commerce and the National Association of Manufacturers
when the agency wants to impose more stringent standards.
In
both cases before the conservative-leaning Supreme Court, mainly
Republican-led states and industry groups have challenged different EPA
regulations, in the hope of weakening the agency's authority.
The EPA has support from Democratic-leaning states, like Massachusetts and New York, and from environmental groups.
"It
would be both a big deal and somewhat unsurprising if EPA loses both
Clean Air Act cases," said Richard Frank, an environmental law professor
at the University of California at Davis School of Law.
Such
rulings would reflect a dilution of the deference that courts generally
show government agencies in interpreting statutes, he added.
The
cases do not challenge whether the EPA can regulate pollutants, such as
greenhouse gases, but instead how it uses the Clean Air Act to regulate
a wide range of them.
The
EPA's authority to interpret the statute broadly is vital to its
mission in the face of resistance from Republicans and a handful of
Democrats in Congress and some state governments.
In
the climate change context in particular, the Clean Air Act is the
EPA's main tool for tackling greenhouse gas emissions after the US
Senate rejected a cap-and-trade bill in 2010.
The
Supreme Court rulings are unlikely to have a direct impact on President
Barack Obama's sweeping Climate Action Plan, which was unveiled in
June, legal experts say, in part because the EPA will be using its
authority under parts of the law not at issue in the cases.
But decisions against the EPA could pose obstacles to the way it rolls out its rules.
In
the first case, to be argued on Dec. 10, the nine justices will
consider the legality of a rule that regulates air pollution that
crosses state lines.
The
second case, expected to be scheduled for oral argument in February,
concerns a challenge to the Obama administration's first wave of
regulations targeting heat-trapping greenhouse gases. The court is due
to issue rulings in both cases by the end of June.
INTER-STATE POLLUTION
The
EPA's Cross-State Air Pollution Rule, meant to take effect in January
2012, would have set limits on nitrogen oxides and sulfur dioxide from
coal-fired power plants in 28 states that emit pollutants in the eastern
part of the country that directly affect air quality in other states,
generally referred to as "upwind states."
An
alliance of industry groups and 15 states, in addition to companies
like Southern Co, Peabody Energy Corp and American Electric Power Inc,
challenged the rule, and it was never implemented.
The
US Court of Appeals for the District of Columbia Circuit determined in
August 2012 that the rule was invalid on multiple grounds.
Under
the worst-case scenario for the government, the Supreme Court could
weaken the EPA's power to bring recalcitrant states into line, legal
experts said.
In the
Obama administration's petition asking for Supreme Court review of the
cross-state rule, Solicitor General Donald Verrilli said that if the
D.C.
Circuit decision
stood, it would "gravely undermine" enforcement of the Clean Air Act,
delaying the ability of downwind states to comply with air standards and
making it nearly impossible for those states to meet deadlines. A
ruling against the EPA could also encourage states to resist other EPA
proposals.
"If the
Supreme Court pushes back against the EPA and says the EPA has to give
the states the first chance to address the problem, that gives the
states more leverage," said Jonathan Martel, a partner at law firm
Arnold & Porter LLP, who represents business interests in air
pollution cases.
CLIMATE CHANGE RULES
In
the climate change case, the Supreme Court agreed last month to
consider a single question of the many raised by nine different
coalitions of industry groups, such as the American Petroleum Institute,
and 16 states, including Texas and Virginia.
They
appealed a June 2012 ruling by the appeals court in Washington
upholding the first suite of EPA rules aimed at tackling climate change.
The justices will
weigh only whether the agency has authority to regulate greenhouse gases
under a permitting program for stationary sources of pollution.
A
loss for the EPA could remove a whole category of pollutants, not just
greenhouse gases, from the so-called "prevention of serious
deterioration" or PSD program, which requires any new or modified major
polluting facility to obtain a permit before any new construction is
done if it emits "any air pollutant."
Under
the program, the operators have to show that they are using the best
available technology available to reduce emissions of the covered
pollutants.
It may not
be all bad news for the EPA. The court passed up a chance to review the
agency's determination that greenhouse gases, the driving force behind
climate change, are a pollutant that needs to be regulated under the
Clean Air Act.
Wins
for the EPA in both cases would not, however, lead to any major shift in
the law in its favor, experts say. "Everything continues to be hard
work" for the EPA, said Sean Donahue, an attorney who represents the
Environmental Defense Fund. "There's tremendous resistance at every
turn."