Supreme Court To Review EPA Air Rules

EPA's major air quality regulations, including two rules governing emissions from power plants, are slated for review by the Supreme Court and a top appellate court.

Air Rules On Trial

The Supreme Court and a key appellate court will hold oral arguments this week over several key Clean Air Act issues including EPA's ability to regulate interstate air pollution; its power plant air toxics rule; the agency's ability to revise air law settlements; and air law preemption of state non-road engine air rules.

The Supreme Court will hear arguments Dec. 10 in EPA's appeal of the U.S. Court of Appeals for the District of Columbia Circuit's 2-1 ruling in EME Homer City Generation et al. v. EPA et al. that scrapped the Cross-State Air Pollution Rule (CSAPR), an emissions cap-and-trade program aimed at curbing upwind states' air pollution hindering air quality in downwind states.

The D.C. Circuit majority found that EPA exceeded its Clean Air Act authority in how it crafted the rule and imposed it on states. Issues of federalism and the scope of EPA's ability to implement trading programs for emissions are likely be key issues for the high court justices.

While the lawsuit is pending, EPA has said it is working on a replacement rule in case the court scraps the regulation. And several eastern states announced Dec. 9 that they are petitioning EPA to expand the scope of an "ozone transport region" subject to stricter pollution controls, in a bid to try and force the agency to require more pollution cuts from upwind states.

While the Supreme Court hears arguments in the CSAPR suit, the D.C. Circuit the same day will hear arguments in White Stallion Energy Center LLC et al. v. EPA et al., in which environmentalists, industry and others are challenging EPA's power plant air toxics rule. The litigation echoes claims that often arise in EPA lawsuits over rules -- environmentalists say that the rule is weaker than the air law requires, while industry argues that is is unlawfully strict.  The outcome of both cases is seen as a major test of two flagship Obama EPA power sector regulations.

Later this week, the D.C. Circuit Dec. 11 hears arguments in USA v. Volvo Powertrain Company, a case in which engine maker Volvo Powertrain is challenging the agency's expansion of a landmark Clean Air Act settlement after it was signed. Industry groups say the litigation is a key test of the certainty of EPA's future settlement agreements. In briefs filed earlier this year in the lawsuit, Volvo Powertrain and a coalition of industry supporters say that upholding the expanded settlement would undermine the basis for all EPA consent decrees with industry.

The D.C. Circuit also hears arguments Dec. 13 in the American Road and Transportation Builders Association's (ARTBA) lawsuit challenging an April 4, 2012, EPA rule granting a waiver for California's state non-road engines emission standards for large spark ignition engines.

The lawsuit is the latest in ARTBA's long-running strategy of pursuing multiple cases in an effort to have courts impose some limits on states' ability to regulate non-road engines. ARTBA argues that the Clean Air Act's general preemption of state mobile source regulations bars rules such as California's engine policies, but has yet to persuade the D.C. Circuit of its claims. (EPA Environmental News Stand, 12/9/2013)