Corporate Accountability

Supreme Court weighs critical pollution rule

By Adam Serwer


Air pollution kills people. The Supreme Court may soon decide how much the Environmental Protection Agency can do about that.


Last year the DC Circuit – the very same court Republicans were attempting to prevent Obama from making any appointments to – struck down an EPA rule forcing states that affect air quality standards in neighboring states to bring down their emissions. Think of it almost like second-hand smoke – if the person sitting next to you is puffing on a cigarette, you’re inhaling too. The same is true of states, whose emissions carry on the wind and contribute to health and environmental problems for their neighbors, and make it harder for those states to meet their federal clean air obligations. Under the Clean Air Act’s “good neighbor” provision, states are obligated to take steps to reduce the impact of their emissions on other states.


“Because of the way air flows in the United States, pollution produced in one state, inexorably floats into other states,” says Tom Donnelly of the Constitution Accountability Center. “This causes problems in downwind states, not just to the health of their citizens, but in meeting the EPA’s standards themselves.” Or as a brief filed on behalf of the American Thoracic Society puts it, “Air pollution measurably and substantially shortens lives.”


On the other hand, reducing emissions costs money, and states and companies would rather not pay it – or at least, not pay more than they think they should have to.


In 2011, the EPA put in place a rule compelling states to figure out how much air pollution they were inflicting on their neighbors and bring their emissions down accordingly. Twenty-eight states and the companies who would have to pay to bring down their emissions demanded the rule be struck down, arguing that the EPA had exceeded its authority because the rule forced states to curtail their emissions more than absolutely necessary.


The DC Circuit struck down the EPA’s rule, arguing that states should only have to reduce their emissions to the extent that they harm air quality in neighboring states. That sounds fair. But a group of scientific experts who filed a brief before the high court described it as “difficult, if not impossible” to meet those standards.


“The DC Circuit’s opinion was a simple answer to a complicated question,” says Elizabeth Hubertz, the attorney with the Washington University School of Law who authored the brief. “We think it’s all but impossible to comply with the DC Circuits red lines and still take into account how air pollution actually works.”


Put it this way. Here’s [a] map in Hubertz’ brief explaining what the DC Circuit imagines interstate air pollution looking like, created by Paul Miller, chief scientist at Northeast States for Coordinated Air Use Management:




And here’s what it looks like to the EPA



Only one of these two parties employs full-time scientists to help them figure it out.


Air pollution doesn’t pass neatly through a series of tubes from one state to another. Some states that contribute emissions to other states are themselves affected by other states’ air pollution. Terrain, atmospheric conditions, even humidity can affect how emissions spread. Reducing emissions enough to stop hurting air quality in one state will also reduce their contribution to other states, which means it’s not really possible for states to bring down its contribution significantly without bringing down more than its share in another.


“The EPA says there’s no way technologically to make such fine distinctions between one state and another state, says Thomas Lorenzen, an attorney with Dorsey & Whitney who litigated many environmental law cases as a lawyer with the Justice Department. “To address the problem in one state, you’re going to have to overcontrol in another state, and the DC Circuit says you cannot do that.”


But on Tuesday, oral arguments before the high court were far more focused on the EPA’s cost consideration than the science of air pollution. Peter Keisler, the attorney representing Industry groups and a mine workers union also argued that the EPA had improperly weighed the cost-effectiveness of compelling certain states to reduce their emissions, an argument Justices Elena Kagan and Sonia Sotomayor implied was “silly,” or “crazy,” while Justice Antonin Scalia countered that doing anything but asking the states to account for any more than their specific contribution to cross-state pollution was “arbitrary.”


“I think, you know, most, people, everybody, thinks that it’s better to regulate with attention to costs than to regulate without attention to costs,” Kagan said. The way the EPA interprets the rule means that some states will have to reduce their emissions not just in relation to how much pollution they create, but how it might affect the state. Keisler argued that this was unfair.


“There is no relationship at all under the EPA’s methodology between the amount a state contributes and the amount it has to reduce,” Keisler said. Justice Stephen Breyer asked whether Keisler was asking the EPA to develop policy without regard for their impact on the individual states, even if they caused “death and destruction, destroys your economy.”


The DC Circuit also reversed the responsibility for figuring out how much states affect their neighbors’ air quality by compelling the EPA, instead of the states, to do so. If one state objects to the EPA’s findings and goes to court over it, and the rule gets blocked, then none of the states are obligated to meet the EPA’s standards until the court rules. That could potentially lead to what a group of states supporting the EPA described in their brief as an “endless loop of delay,” under which the states could keep challenging EPA findings, the courts could keep siding with the states whose air pollution crosses state lines, and those states would never actually end up having to take responsibility for the pollution they cause in other states.


During oral arguments Tuesday, Justice Scalia appeared to concur with the DC Circuit’s argument that the EPA should go first, and that it was unfair for the states to be forced to submit their plans beforehand. When Deputy Solicitor General Malcolm Stewart pointed out that many states had no problem doing that, Scalia said “that just means it’s pin the tail on the donkey. Some states got the tail.”


Under the Clean Air Act, the states have to develop implementation plans to reduce emissions within three years. If they don’t, or if their plan is inadequate, the law says the EPA can come with a plan for them. Because the DC Circuit ruling also places the burden on the EPA to tell the states how much they’re polluting before the states come up with their plans to reduce emissions, and there’s no deadline for the EPA to do so, an EPA in, say, a Ted Cruz administration could easily put off doing so its entire time in office.


The Supreme Court doesn’t have to reach a decision on the merits. Because the states didn’t object to the EPA rule during the rulemaking process, the high court could rule that the case was not properly brought and kick it back to the lower court which could order a new proceeding or throw out the case. But during oral arguments on Thursday, the justices seemed more interested in deciding the case than finding a way not to.


If the justices side against the EPA, it’s unclear whether it could devise an alternative rule to effectively deal with interstate air pollution. Asked by Sotomayor what the agency would do if the Supreme Court affirmed the DC Circuit, Stewart said he didn’t know. “I think it would be an extraordinary undertaking for EPA to try to achieve,” Stewart said. “Part of the difficulty here is that nobody has identified a concrete alternative.”


The Roberts court has rarely sided against the Chamber of Commerce, which has weighed in against the EPA and on the side of the states whose air pollution the EPA is trying to regulate. According to the Constitutional Accountability Center, the Chamber has gone 8-2 in environmental law cases since Chief Justice John Roberts and Justice Samuel Alito joined the court.


Alito has recused himself from the case however, and at oral arguments, Roberts–and most of the other justices save Scalia–asked tough questions of both sides. A 4-4 split would preserve the DC Circuit’s ruling, but one defection from the court’s conservatives could swing the case in favor of the EPA.


“This case may not break down along ideological lines,” said Lorentzen. “It’s going to be a very interesting decision.”

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