As the U.S. Supreme Court heard oral arguments on Dec. 10 in two major clean-air regulatory cases, most of the justices appeared to be sympathetic to the Environmental Protection Agency’s position that it had not exceeded its statutory powers when it issued an air-pollution-control regulation in 2011.
The cases, which the court consolidated into one proceeding, center on whether EPA overstepped its Clean Air Act authority when it issued the Cross-State Air Pollution rule in 2011. That regulation, also called the "transport rule," requires 28 midwestern and southern states to control powerplant air emissions of sulfur dioxide, nitrogen oxide and other pollutants that affect mid-Atlantic and eastern states downwind.
The cases are significant for construction, because EPA's regulation would require some $800 million annually in powerplant retrofits, mostly in upwind states, EPA has said. The rule, which a lower court suspended last year, also is estimated to save thousands of lives, according to public-health and environmental advocates.
Judging from their comments during the 90-minute session, several justices seemed to indicate they thought EPA had not overreached. The agency finalized the regulation in July 2011 to comply with Clean Air Act requirements concerning the movement of air pollution across state boundaries.
A group of industry and labor organizations, along with Texas and several other states, challenged the regulation in a federal appellate court in 2011.
A divided U.S. Court of Appeals for the Washington, D.C., circuit vacated the transport rule in August 2012, stating that EPA had exceeded its authority in its interpretation of the 1990 “good neighbor” modifications to the clean-air statute. To take the place of the vacated transport rule, the 2005 Clean Air Interstate Rule was reinstated and remains in effect.
Justice Antonin Scalia was skeptical about EPA's position and questioned the fairness of requiring states to draw up implementation plans without knowing what the final target air-quality standards would be.