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EPA moves to dismiss Clean Air Act case, reversing Bush Administration policies

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on Feb 6, 2009 at 3:14 pm
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Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.

But the first change came in an environmental case today.  The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey.  The petition had challenged a D.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.

The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories.  The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412” and therefore does not seek review of the lower ruling.

Under the Clean Air Act Amendments of 1990, the EPA was directed to “regulate electric utility steam generating units…if it finds such regulation is appropriate and necessary” after conducting a study of hazardous air pollutants emitted by power plants. The study was completed in 1998 and in the final days of the Clinton administration, the EPA held that Section 7412 regulation of coal- and oil-fired power plants was appropriate and necessary because of mercury emissions that “present significant hazards to public health and the environment.”

However, in 2005, the EPA promulgated the Clean Air Mercury Rule (CAMR), which created a national emissions cap and trade program to meet mercury reduction requirements and delisted power plants as a source category, applying “plant-specific standards of performance.” The EPA had not, as it conceded in its petition, made the health and environmental impact findings required by the Act at Section 7412(c)(9) to remove a source category, but argued that the new cap and trade program would make the old regulations neither “appropriate” nor “necessary” for power plants. The court of appeals agreed with the petitioners that the delisting rule was contrary to the plain text of the Act and vacated both of the EPA’s rules.

This motion to dismiss presents a fairly radical policy reversal for the EPA, which in its petition for certiorari had argued that the original agency finding on power plant regulations was “seriously flawed” and that mercury emissions would not present a public health hazard with the cap and trade program. The EPA under the Bush administration argued strongly for the market-based emissions allowance trading program as the most cost-effective measure to reduce air pollutants and, further, that Congress intended for the agency to have discretion to make alternative regulations for power plants.

The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.

Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.

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