CPR Scholars Respond to Supreme Court Ruling in Favor of EPA's Cross-State Pollution Rule

Erin Kesler

April 29, 2014

The Supreme Court today upheld, by a 6-2 vote, the EPA's cross-state air pollution rule.

Below are reactions from Center for Progressive Reform scholars Thomas O. McGarity and Victor Flatt.

According to McGarity:

After two decade's worth of litigation, the Supreme Court has finally held that EPA may require polluters in one state to protect air quality in downwind states through a sensible combination of emissions thresholds, cost-effective pollution reduction technologies, and emissions trading.  

While this is good news to residents of downwind states, they cannot yet breathe easy.  Much time has passed since EPA promulgated the "cross-state" rule in 2011, and both EPA and the states must now make up for lost time in putting the rule's protective provisions into place.  

To achieve a successful implementation, EPA must resist the inevitable demands for exceptions, exemptions, and time extensions from upwind states that have thus far successfully forestalled the Clean Air Act's "good neighbor" policy.

According to Flatt:

The majority got it exactly right in reversing the DC Circuit Court and upholding the EPA's painstakingly crafted cross state air pollution rule. The majority was correct that the formula promulgated by the EPA was well within its statutory grant of authority and that the DC Circuit Court's opinion would have put an impossible burden on the EPA.

The majority was also correct in striking down the Circuit Court's requirement that the EPA give states guidance before overturning deficient state implementation plans. The Clean Air Act is clear that the EPA's promulgation of joint plans was required when EPA finds the state plans to be inadequate.

Most important is the effect of this opinion. It finally brings teeth to the requirement that states not allow their own pollution to cause other state air pollution violations. This will do more for clean air compliance than EPA's requirement to tighten NAAQS standards. Standards mean nothing unless they can be enforced. By controlling these criteria pollutants effectively, the program should also assist with greenhouse gas reduction.




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