Is the Supreme Court going to support the EPA in cross-state air pollution?

posted at 4:21 pm on December 10, 2013 by Erika Johnsen

The Environmental Protection Agency had its day in court today — which was merely one of the many before the highest court in the land this administration’s top environmental regulator has already had — this time arguing that the “good neighbor” provision of the Clean Air Act bestows them with the authority to selectively regulate the emissions of certain states that interfere with any downwind states’ ability to meet the allowed allotments for various pollutants. The biggest application of the provision, officially known as the Cross State Air Pollution Rule, would be in forcing states that produce more coal pollution to cap their emissions — and the two major options for reducing those emissions are either retrofitting power plants with costly pollution control technology, or shutting ‘em down completely.

On Monday, eight Northeastern governors (all of which are Democrats) submitted a petition to the EPA urging them to double down on the harsher air regulations for nine Rust Belt and Appalachian states, via the NYT:

The East Coast states, including New York and Connecticut, have for more than 15 years been subject to stricter air pollution requirements than many other parts of the country. Their governors have long criticized the Appalachian and Rust Belt states, including Ohio, Kentucky and Michigan, for their more lenient rules on pollution from coal-fired power plants, factories and tailpipes — allowing those economies to profit from cheap energy while their belched soot and smog are carried on the prevailing winds that blow across the United States. …

In the case before the Supreme Court, the E.P.A. argues that the cross-state air rule, which it is required to issue under the Clean Air Act of 1990, is necessary to protect the health and environment of downwind states. The utilities and 15 states on the other side argue that the rule, as written by the Obama administration E.P.A., gives the agency too much regulatory authority and places an unfair economic burden on the states.

Regardless of how the Supreme Court rules, the petitioning governors are pushing for stronger constraints on their southern neighbors — and if the oral arguments in court today were any indication, it looks like they and the EPA might get a judicial blessing on the expanded authority they’re seeking. SCOTUSBlog breaks it down:

At issue is how the EPA can carry out the task assigned by Congress of making sure that states which generate pollution that then impairs the quality of air for their neighbors can be held accountable and made to do something about it.  As the Court explored that issue, it became increasingly apparent that the Justices appreciated that, because it is not possible to blame State A or State B in precise portions for endangering the environment in State C or State D, maybe the EPA should be allowed a healthy amount of discretion to devise a plan. …

A group of upwind states that object to the EPA’s approach complains that it has no authority to impose such obligations on a state without first giving each state both notice of its share of blame and a chance to devise control strategies on their own.  Texas’s state solicitor general, Jonathan F. Mitchell, put that argument before the  Court.

But a group of private firms, mainly power companies, along with a labor union, complains that the Clean Air Act nowhere gives the EPA the authority to devise a cost-based method of calculating state control obligations, because that makes some states responsible for more than their share of transported pollution. Washington attorney Peter Keisler offered that argument to the Justices.

And the EPA being “allowed a healthy amount of discretion” almost never bodes well. Most of the justices evidently appreciated the difficulty that the EPA faces in really pinning down precise pollution patterns and various contributions from each state and that reverting to wider, more flexible federal authority by allowing them to interpret the rules themselves would be the path of least resistance — but this is only one of the many ways in which the EPA has lately been gunning to assign an increasing amount of increasingly ill-defined authority to itself and then wielding it in true big-government-zealotry fashion. They’re in process of trying to do much the same thing with the Clean Water Act, and this “good neighbor” provision will come in mighty handy in helping the Obama administration to further their crackdown on coal through whatever arbitrary and non-transparent methods they please.


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Pssst.

Benedict Roberts… The NSA has some new tapes of your phone calls they’re willing to trade.

viking01 on December 10, 2013 at 4:28 PM

This ought to be fun. Every May we get huge smoke from Mexicans burning their fields. And every time a Texan runs for national office we get labeled as the most polluted state in the nation.

I’ll take the Mexican smoke, can we eliminate the East Coast media intrusion?

DanMan on December 10, 2013 at 4:30 PM

Why would the SCOTUS rule to limit government? They ARE government, so the more of it, the better for them.

I remember when we had a free republic. It sure was nice. Oh, well…. sigh. It was good while it lasted.

Wino on December 10, 2013 at 4:30 PM

My next chosen presidential candidate will have the most unkind things to say about the EPA.

M240H on December 10, 2013 at 4:31 PM

“The EPA is a tax. It’s all good.”
/Roberts

Bitter Clinger on December 10, 2013 at 4:32 PM

But a group of private firms, mainly power companies, along with a labor union, complains that the Clean Air Act nowhere gives the EPA the authority

How quaint, actually hold administrative agencies to their statutory authority. Don’t these people realize Dear Liar did away with that notion?

rbj on December 10, 2013 at 4:33 PM

Those Northeastern, Democrat-run states just love spending money. Why don’t they build a giant fan to blow all the supposedly-polluted air back where it came from?

Bitter Clinger on December 10, 2013 at 4:34 PM

The East Coast states, including New York and Connecticut, have for more than 15 years been subject to stricter air pollution requirements than many other parts of the country. Their governors have long criticized the Appalachian and Rust Belt states, including Ohio, Kentucky and Michigan, for their more lenient rules on pollution from coal-fired power plants, factories and tailpipes — allowing those economies to profit from cheap energy while their belched soot and smog are carried on the prevailing winds that blow across the United States.

And their we have the crux of the problem. Those Eastern states are allergic to cheap energy.

Bitter Clinger on December 10, 2013 at 4:36 PM

Probably.

Paul Ryan…..A shining light of Traitorous support of OPEN BORDERS.

#romneyryankeepsonfailing

#imgladwelostin2012

#nomoreprogressivesleadingthegop

#budgetsmeannothing

PappyD61 on December 9, 2013 at 6:56 PM

WryTrvllr on December 10, 2013 at 4:40 PM

Let’s just pull the plug on everyone. Roll the calendar back to the 18th century. We don’t need no steenking electricity!

merlich on December 10, 2013 at 4:54 PM

On global warming climate change:

Wattsupwiththat discusses the problems with a 2008 poll that said “97% of climatologists agree with the warmists.” A main issue is that from a base of ~3200 “earth scientist” respondents, the numbers were meticulously whittled down to just 77, and even a large number of climatologists were excluded (that didn’t publish enough papers on climatology or they were excluded for other reasons).

The Hockey Schtick reports: Meteorologist’s poll finds no consensus on climate change & those with liberal political views far more likely to believe in man-made global warming. Only 52% overall believed global warming is happening and is mostly human-caused, while 48 percent did not. But they looked at those who “earned their living” via global warming, and found that to be a conflict of interest (instead of a positive and appropriate “specialization” or whatever), and reported how these respondents were biased toward the warmist position.

anotherJoe on December 10, 2013 at 4:58 PM

Let’s just pull the plug on everyone.

I just got a second gas meter for the pool heater. A gas generator is just around the corner. Pull away.

DanMan on December 10, 2013 at 5:01 PM

A variation of this was going on when I was living in W. Michigan. The EPA kept coming out of the region (Detroit was already sucked in because of the industry on the other side of the state). Well they kept demanding remediation even though if you looked across Lake Michigan you’d find Chicago and Milwaulkee and the source of the pollution. It really was a scam to force W. Michigan to the higher standards even though they were not the polluters.

Happy Nomad on December 10, 2013 at 5:02 PM

I heard that Roberts as well as others on SCrOTUS cough a lot.

Mr. Arrogant on December 10, 2013 at 5:06 PM

The only cross-state air pollution that the Supreme Court will find that the EPA has no authority to regulate will be the smoke from the ovens in the “Re-education Camps” that Obama’s political mentor [and former WEATHERMAN leader] William Ayers says that 20% of Americans will have to be sent to because they refuse to submit. Anything else, up to and including breaking wind across a state line, will be a Federal felony.

Subotai Bahadur on December 10, 2013 at 5:10 PM

DUMB:

Those Northeastern, Democrat-run states just love spending money. Why don’t they build a giant fan to blow all the supposedly-polluted air back where it came from?

Bitter Clinger on December 10, 2013 at 4:34 PM

DUMBER YET:

And their we have the crux of the problem. Those Eastern states are allergic to cheap energy.

Bitter Clinger on December 10, 2013 at 4:36 PM

I agree with the EPA in this case. States that allow coal generating plants should pick up the tab to clean up their act and be responsible for the pollution they create in other states.

timberline on December 10, 2013 at 5:11 PM

I agree with the EPA in this case. States that allow coal generating plants should pick up the tab to clean up their act and be responsible for the pollution they create in other states.

timberline on December 10, 2013 at 5:11 PM

Why you trying to pick a fight with China, Japan, and Korea?

WryTrvllr on December 10, 2013 at 5:19 PM

I agree with the EPA in this case. States that allow coal generating plants should pick up the tab to clean up their act and be responsible for the pollution they create in other states.

timberline on December 10, 2013 at 5:11 PM

DUMB!!!

Do you know how much those coal-generating plants have spent to “clean up their act” in reducing pollutants? This is just a War on Coal. Period. How dare we have lower-cost energy.

And speaking of “cheap energy”, New York steadfastly refuses to allow natural gas fracking which is a cleaner, direct competitor to coal.

Bitter Clinger on December 10, 2013 at 5:36 PM

I agree with the EPA in this case. States that allow coal generating plants should pick up the tab to clean up their act and be responsible for the pollution they create in other states.

timberline on December 10, 2013 at 5:11 PM

The REAL question is how many of those coal burning plants are supplying power to their bitchy neighbors. I’m in favor of shutting down the plants supplying the power to their bitchy neighbors letting their bitchy neighbors go “dark”.

dominigan on December 10, 2013 at 5:47 PM

Of course, if they can’t export their pollution, then there is no reason to export their power.

J_Crater on December 10, 2013 at 5:54 PM

So, how do we regulate Mexico, that’s my southern border polluter.

DDay on December 10, 2013 at 5:55 PM

The East Coast states, including New York and Connecticut, have for more than 15 years been subject to stricter air pollution requirements than many other parts of the country. Their governors have long criticized the Appalachian and Rust Belt states, including Ohio, Kentucky and Michigan, for their more lenient rules on pollution from coal-fired power plants, factories and tailpipes — allowing those economies to profit from cheap energy while their belched soot and smog are carried on the prevailing winds that blow across the United States.

Poor northeastern states….all that pollution heads their way. Amazing how that prevailing western wind just STOPS at the shorelines. It must be horrible, breathing all that putrid air that no longer heads east, out over the ocean. Exactly WHO put in air pollution requirements? Couldn’t have been their own governors, could it?

Dopes.

herm2416 on December 10, 2013 at 5:57 PM

CRUSH THE EPA!

ultracon on December 10, 2013 at 7:57 PM

The Liberty Amendments are looking better and better, aren’t they.

MTF on December 10, 2013 at 9:11 PM

Can we now call the EPA by their true name? The Greenstapo!

Half the battle is labeling.

schmuck281 on December 10, 2013 at 10:30 PM