Last year, I updated Bench Memo readers on a development to the challenge of EPA’s Cross-State Air Pollution Rule (CSAPR). Judge Brett Kavanaugh, writing for the U.S. Court of Appeals for the District of Columbia Circuit asserted that “Whatever its merits as a policy matter, EPA’s Transport Rule violates the statute.” That decision went on to rule there was a second violation of the Clear Air Act involving EPA’s implementation of the “Good Neighbor” provision at the heart of the regulation.
Today the Supreme Court heard oral arguments in the case (docket No. 12-1182). One key aspect is if the Act allows the federal government to consider dollar costs when determining which State must take action for offsetting pollution to another state. Here, EPA is asserting that “amounts” means dollar amounts, an interpretation that can only be understood if context is ignored. In the context of the Act, “amounts” clearly refers to amounts of pollution, not dollars related to remediating that pollution. To paraphrase an example Justice Scalia used several years ago, if a statute were to speak of a “staple, screw, rivet, nail, buckle, or snap” it is wrong in that context to assert that the word “buckle” refers to the hull of a naval submarine in distress.
The other issue discussed at length centered on the unprecedented manner the EPA has adopted in issuing the CSAPR rule. The EPA is required to follow the statutory requirements of the Act, which affords states an opportunity to implement the pollution reductions that the federal government has specifically calculated. In this case, however, the EPA did not quantify each state’s obligations ahead of time. Instead, it released those calculated obligations at the same time it released a Federal Implementation Plan determining the means by which each state would meet its pollution-reduction objectives. The D.C. Circuit found that EPA’s unprecedented action violated the Act by eliminating the opportunity states had to craft their own compliance plans.
The outcome of this case is important. If the Supreme Court strikes down the D.C. Circuit ruling and allows the EPA’s actions to stand, the relationship between the federal government and the states in implementing the Clean Air Act will transition from cooperative to coercive. Part of the reason the statute allows states time to craft their own rules once the EPA has announced state-specific obligations is simple: States are better positioned to determine trade-offs that best achieve those goals than someone in Washington. An overturning of the lower court opinion would put states in a position of either carrying out the federal government’s orders or ceding the environmental protection role within their state permanently.