EPA Rules on Cross-State Air Pollution Get Warm Supreme Court Reception

December 11, 2013

Supreme Court justices seemed inclined Tuesday to resurrect Environmental Protection Agency rules targeting air pollution that drifts across state borders, one of the Obama administration’s major environmental targets.

The government for years has struggled to implement a directive under the federal Clean Air Act to protect downwind states from pollution generated in other states, mostly from coal-fired power plants.

The latest effort to address the “good neighbor” provisions was due to go into effect in January 2012. But a divided panel of the U.S. Court of Appeals for the D.C. Circuit, acting on a challenge brought by 14 of the upwind states and a coalition of industry interests, rejected the plan and said the EPA had exceeded its authority.

The government appealed and appeared to get a better reception from the eight justices who participated in Tuesday’s oral arguments. (Justice Samuel A. Alito Jr. recused himself from the case.)

The four justices who usually make up the court’s liberal contingent spoke forcefully in favor of EPA’s rulemaking powers, and both Chief Justice John G. Roberts Jr. and Justice Anthony M. Kennedy at times indicated they believed the law gave the agency broader leeway than the challengers alleged.

Only Justice Antonin Scalia indicated he believed the EPA had exceeded its power.

The Cross-State Air Pollution Rule affects mostly the eastern two-thirds of the country and requires power plants in more than two dozen states to clean up nitrogen oxide and sulfur dioxide pollution that contribute to soot and smog elsewhere.

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