IPR Files Amicus Brief in the Supreme Court of the United States on Behalf of American Thoracic Society in Support of EPA’s Transport Rule

On September 10, 2013, the Institute for Public Representation filed an amicus curiae brief on behalf of the American Thoracic Society (ATS). The brief urged the Supreme Court to reinstate the EPA’s Cross-State Air Pollution Rule, also known as “CSAPR” (pronounced “Casper”) or the “Transport Rule,” which the D.C. Circuit had vacated and remanded. As the brief pointed out, the D.C. Circuit’s decision effectively guarantees that millions of Americans will be harmed by needless cross-state air pollution. The case, captioned EPA v. EME Homer City Generation, is a consolidation of two cases, one filed by EPA and one by the American Lung Association, both of whom are named petitioners.

ATS is an international educational and scientific organization dedicated to preventing and fighting respiratory disease. ATS filed its amicus brief to avert harm to public health in downwind states. The brief discussed the harmful effects of cross-border air pollution and explained why the Transport Rule would not only have significant public health benefits – by preventing between 13,000 and 34,000 premature deaths annually – but also is necessary.

EPA issued the Transport Rule to deal with the problem of interstate air pollution. Under the Clean Air Act, a state is either in attainment or nonattainment for each air pollutant that EPA regulates. The Clean Air Act contains what is commonly known as the “good neighbor provision.” This requires each state to include, in its state plan implementing the Clean Air Act, adequate provisions prohibiting any emission source within its boundaries from emitting any air pollutant that would significantly contribute to another state’s nonattainment or interfere with another state’s maintenance of its own attainment of any air quality standard. The Clean Air Act also requires EPA to issue a federal plan if it finds a state has not complied with these requirements.

Since 1990, when Congress added the good neighbor provision to the Clean Air Act, EPA has implemented a series of cap-and-trade programs to fulfill its responsibility under that provision. EPA’s first regulatory effort was the 1998 “NOx SIP Call,” which set standards for cross-state nitrous oxide emissions. In 2005, EPA promulgated the Clean Air Interstate Rule (“CAIR”), a comprehensive set of limits on cross-state emissions. CAIR was quickly challenged, and in 2008 the D.C. Circuit determined that CAIR was incompatible with features of the Clean Air Act. Rather than vacate CAIR fully, however, the court remanded it to EPA and ordered that CAIR continue to operate until EPA devised a replacement. The Transport Rule, more protective of public health than its predecessor, was meant to be that replacement. Because the D.C. Circuit vacated the Transport Rule, CAIR has remained in force.

The D.C. Circuit gave several reasons for holding that the Transport Rule was beyond EPA’s statutory authority under the Clean Air Act:

  • the Transport Rule could theoretically require a state to reduce emissions below the threshold level used in EPA’s analysis to determine whether the state’s emissions warranted further evaluation;
  • where multiple upwind states contribute to a common downwind state’s nonattainment, the Transport Rule did not guarantee that the upwind states’ emission-reduction obligations were proportional to their share of contributed emissions;
  • the Transport Rule did not assure that upwind states’ collective obligations would not exceed the minimum amount necessary to enable downwind areas to meet the air quality standards; and
  • the Transport Rule impermissibly denied the states the first opportunity to implement their good neighbor obligations.

EPA explained its objections to each of these alternative holdings in its brief.

ATS’s amicus brief focused on air pollution’s serious public health impacts and the significant harm the D.C. Circuit’s decision causes to the public. It also addressed two of the respondents’ arguments for upholding the decision, namely that air pollution is actually decreasing, and that CAIR is sufficient to achieve attainment in downwind states. The ATS brief explained that air pollution continues to threaten public health, and that CAIR is not a viable source of protection from it. The brief also noted that, while CAIR is in place, between 2,550 and 6,560 more premature deaths will occur every year than if the Transport Rule were in place.

Argument before the Supreme Court is scheduled for took place on December 10. Justice Alito recused himself from the case. The Court’s decision is expected in the Spring.

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Pictured: Thomas Gremillion (fellow), Laura Friend (3L), and Justin Gundlach (fellow) brave the freezing rain to hear oral argument.

 

This post was drafted with the assistance of Georgetown Law student Laura Friend.

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