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More on today’s orders: Good news for the EPA

The Supreme Court and the Environmental Protection Agency saw eye to eye today, as the Court granted the agency’s petition seeking review of a decision that invalidated an important rule relating to cross-state air pollution; at the same time, it denied a separate set of petitions by challengers to the EPA’s decision to authorize a blend of ethanol.

First, the Court granted certiorari in the consolidated cases Environmental Protection Agency v. EME Homer City Generation L.P., and American Lung Association v. EME Homer City Generation L.P. In these cases, the government asked the Court to review a decision of the D.C. Circuit invalidating a major EPA rule implementing an important provision of the Clean Air Act regulating cross-state pollution.

Air pollution is a complex problem because dirty air moves across state lines. Consequently, if upwind states generate a lot of pollution, the effects are likely to be felt in downwind states. To address this issue, the Clean Air Act requires the states to create implementation plans that not only bring their own air quality into compliance with federal standards, but also prevent pollution that “contribute[s] significantly” to air quality problems in downwind states. States that fail to adopt adequate implementation plans are forced to implement plans devised by the EPA.

The EPA sought to implement this portion of the statute by promulgating a rule, known as the Transport Rule, which identified twenty-eight upwind states that were emitting excessive quantities of certain pollutants, and, based on prior findings that the states had failed to adopt adequate plans to control those pollutants, set forth federal implementation plans to do so. The upwind states and various industry groups challenged the rule in the D.C. Circuit, and the court held that the rule was invalid under the statute. In so holding, the court reasoned that the Transport Rule imposed too great a burden on upwind states, including because it failed to precisely account for the different contributions made by multiple upwind states to a single downwind state’s air quality problems, and because it did not ensure that the burden on upwind states would be just sufficient to meet minimum standards, and no more. The court also held that the portion of the Transport Rule enacting federal implementation plans was invalid.

The EPA and the American Lung Association, a party to the case below, both sought the Court’s review. Their petitions for certiorari argued that the D.C. Circuit exceeded its jurisdiction and that the various challenges to the Transport Rule are foreclosed by prior EPA actions, including the rulemaking proceedings and EPA orders finding substantial noncompliance by the relevant states. The government argues that the decision below, “if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.” The Court granted both petitions today, and the cases will be argued next Term.

The Court also denied certiorari in a trio of cases challenging the EPA’s decision to permit the manufacturer of an ethanol fuel to bring it to market. The cases are American Fuel & Petrochemical Manufacturers v. Environmental Protection Agency, Grocery Manufacturers Association v. Environmental Protection Agency, and Alliance of Automobile Manufacturers v. Environmental Protection Agency. These cases involve the EPA’s decision to authorize a fuel manufacturer called Growth Energy to market a blend of unleaded fuel containing up to fifteen percent ethanol.

A group of trade associations representing the petrochemical, food production, and automobile industries challenged the EPA’s decision in the D.C. Circuit. The EPA itself did not contest the challengers’ standing, but Growth Energy, which had intervened in the case, did, and the court essentially agreed with all of Growth Energy’s arguments and dismissed the case for lack of jurisdiction. It found that the challengers had failed to show that they had the requisite stake in the controversy to support judicial review. The challengers petitioned for Supreme Court review, and the EPA and Growth Energy both opposed their petitions, arguing that the D.C. Circuit merely applied well-settled law. The opposition succeeded, as today the Court denied certiorari in all three cases, effectively ending that litigation.

Recommended Citation: Tejinder Singh, More on today’s orders: Good news for the EPA, SCOTUSblog (Jun. 24, 2013, 5:51 PM),