Supreme Court tries to pierce fog of cross-state pollution laws

McClatchy Washington BureauDecember 10, 2013 

— A complicated Supreme Court fight over clean air Tuesday pit Texas Solicitor General Jonathan F. Mitchell against the Obama administration, among others.

While a snowstorm shut down much of official Washington, Mitchell urged a clearly divided court to reject Environmental Protection Agency regulations on states that send pollution downwind. Representing a coalition of other polluting states, and allied with energy companies and coal miners, Mitchell said federal regulators placed too heavy a burden on some regions.

“EPA’s actions are unlawful for several independent reasons,” Mitchell said, calling the agency’s actions “arbitrary and capricious.”

The complaints by Texas, Florida, South Carolina and other so-called upwind states clearly resonated with conservative justices during the unusually long, 90-minute oral argument. Justice Antonin Scalia, in particular, repeatedly suggested that the EPA’s actions left states in the dark about what’s required to cut cross-border air pollution.

“The agency said, ‘You put together a (plan) and then we’ll tell you what the target is,’ ” Scalia said.

Liberal justices, though, sounded more sympathetic to the EPA, with Justice Elena Kagan noting that courts typically grant regulatory agencies “a lot” of deference in interpreting legislation. A frequent swing vote, Justice Anthony Kennedy, raised at least some points potentially helpful to the Obama administration, but the single crystal-clear point Tuesday was that a split decision is in the offing.

“This is a tough problem,” Justice Stephen Breyer acknowledged.

It’s also highly technical, forcing justices to grapple with details such as National Ambient Air Quality Standards, state and federal implementation plans and something called the Cross-State Air Pollution Rule.

As a result, justices and attorneys frequently resorted to analogies Tuesday in hopes of clarifying what’s going on. These ranged from comparing charitable contributions made by millionaires versus middle-income Americans, to stopping sheep and cows that graze across borders, to figuring out which missed shot a basketball coach would blame for a close loss.

“I thought that was pretty good,” Chief Justice John Roberts Jr., who once famously compared judging to being a baseball umpire, said of the basketball example.

Under the Clean Air Act, states must prepare plans that describe how air-quality standards will be met. The plans must include a so-called “good neighbor” provision addressing air pollutants that drift across borders and “contribute significantly” to air quality problems in other states.

If a state fails to present a plan, the federal government will prepare one in its stead.

“It’s not a matter of the EPA versus the states,” Deputy Solicitor General Malcolm L. Stewart said on behalf of the administration. “It’s a matter of the EPA trying to act as an honest broker between the upwind and downwind states.”

In one example the administration cited, 93 percent of the ozone air pollution found in New Haven, Conn., was found to have come from 28 upwind states. Nationwide, federal health experts attribute 1 in 20 U.S. deaths and hundreds of thousands of other health problems annually to ozone and particulate-matter pollution.

One question is whether the EPA is improperly considering the cost-effectiveness of pollution controls rather than focusing strictly on the state’s specific responsibility for pollution elsewhere. Another question is whether the EPA is improperly compelling states to prepare pollution-control plans before federal officials have specified how much each state contributes to air quality problems elsewhere.

“States here which are making only a very slight contribution to air quality problems in downwind states are nonetheless required to make very substantial reductions, in many cases far more than states that are making far greater contributions to poor air quality in the same downwind locations,” attorney Peter Keisler said, arguing on behalf of Entergy Corp., the United Mine Workers of America and others.

Further complicating the case’s resolution, Justice Samuel Alito has recused himself. Though Alito hasn’t made public the reason for his recusal, it creates the possibility of a tie. If the court gets stuck on a 4-4 vote, it would have the effect of upholding a lower appeals court, which ruled against the EPA’s regulations.

As is his custom, Justice Clarence Thomas was the only member of the court not to speak or ask questions during the oral argument. A decision is expected by the end of June.

Email: mdoyle@mcclatchydc.com; Twitter: @MichaelDoyle10

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