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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.

By David G. Savage, December 10, 2013

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 states.

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 own.

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.

Justice Anthony M. Kennedy also said the law appeared to give the EPA flexibility.

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."