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Wednesday, December 11, 2013
Air pollution battle pits administration against GOP-led states
The Supreme Court seems receptive to the call for tougher
environmental rules to reduce cross-border air pollution from Midwestern
and Southern states.
WASHINGTON — In a regional air pollution battle with partisan overtones, the Obama
administration appeared to make headway Tuesday in persuading the
Supreme Court to allow tougher federal environmental standards to
prevent ozone and other emissions from coal-producing Midwestern and
Southern states from wafting over Northeastern states.
The politically charged
dispute pits the Obama administration and environmentalists against
mostly Republican-led states with less stringent industrial pollution
controls, as well as the electric power industry.
In something of a surprise, most justices sounded as if they were leaning toward restoring the Environmental Protection Agency's
so-called good neighbor rule to reduce cross-border air pollution.
Called for under the Clean Air Act to prevent one state's pollution from
harming another, the proposed EPA rule seeks to impose federal
pollution limits on states.
But the rule has proved difficult to implement. In 2008, an earlier version proposed by the George W. Bush
administration was rejected by the courts because it did not go far
enough to protect the East Coast states. Last year, two Bush-appointed
judges on the U.S. Court of Appeals for the District of Columbia Circuit
blocked the latest version, crafted by the Obama administration. The
judges said the rule went too far in imposing federal limits on the
In urging the high court to reverse that decision, Deputy Solicitor
Gen. Malcolm Stewart said the EPA rules were needed "because of
widespread noncompliance" by states whose power plants were sending
pollution toward the East.
Northeastern states have long complained that despite tough
anti-pollution standards imposed on their businesses and drivers, poor
air quality continues to be a costly and dangerous problem, largely
because of coal-fired power plants in states such as Kentucky and Ohio.
Those emissions are carried to the Eastern Seaboard by prevailing winds.
The EPA said its proposed stricter limits on ozone and other air
pollutants would save up to 34,000 lives a year, spare hundreds of
thousands of people from asthma
and other respiratory problems, and save the nation at least $120
billion a year. The upgrades to power plants and other costs could total
more than $2 billion a year, the EPA said.
Stewart insisted the smokestack limits would "protect the public
health and strike a fair balance between the competing interests of
upwind and downwind states."
Opponents of the EPA rules said the agency exceeded its authority and
should have given states an opportunity to reduce emissions on their
Fourteen states, led by Texas, urged the court to throw out the Obama
administration rule. The EPA "has written the states out of the Clean
Air Act" by imposing a federal rule, said Jonathan Mitchell, the Texas
state attorney. He was supported by lawyers from Alabama, Florida,
Georgia, Indiana, Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma,
South Carolina, Virginia and Wisconsin.
The EPA had the support of nine states — New York, Illinois,
Connecticut, Delaware, Maryland, Massachusetts, North Carolina, Rhode
Island and Vermont — as well as the cities of New York, Chicago,
Baltimore and Philadelphia. In a friend-of-the-court brief, their
lawyers argued that the stricter limits on smokestack pollution were
needed and long overdue.
Only Justice Antonin Scalia sharply challenged the government's position during the 90-minute oral argument.
The court's four liberals appeared to agree with the administration's
argument that the EPA was simply trying to enforce the Clean Air Act.
The agency is due "substantial deference," Justice Elena Kagan said.
Although the state versus state battle is largely rooted in
geography, partisan elements are hard to ignore. Most of the complaining
East Coast states are led by Democrats, while the Midwestern and
Southern states are Republican-dominated.
Illinois, President Obama's home state, split with its Midwest
neighbors to support the EPA rule. New Jersey, meanwhile, led by
Republican Gov. Chris Christie,
declined to sign a separate but related EPA petition this week in which
his fellow East Coast states called for even tougher rules to be
imposed on their Midwestern counterparts.
Environmental advocates said they were encouraged by what they heard.
"A majority of the justices seemed to think the design of the
cross-state air pollution rule was reasonable," said Vickie Patton, a
lawyer for the Environmental Defense Fund. "The millions of Americans who are suffering from smog pollution should not have to wait because of more years of delay."