Broad Coalition Presents Case for Clean Air to the Supreme Court

The U.S. Supreme Court just heard arguments in a case over the Environmental Protection Agency’s (EPA) critically important Cross-State Air Pollution Rule.

The Cross-State Air Pollution Rule would clean up the pollution from power plant smokestacks across the eastern U.S. that drifts downwind, up to hundreds of miles, transforming into lethal particulates and ground-level smog.

A coalition of states, cities, leading health associations, power companies, and environmental groups – including EDF – presented a strong case to the High Court to defend these clean air protections for 240 million Americans.

This is not the first time that the Supreme Court has addressed the issue of the interstate transport of air pollution. In 1907, the State of Georgia sued Tennessee Copper Company for polluting its air and its forests. In enjoining the harmful air pollution at issue, Supreme Court Justice Oliver Wendell Holmes stated:

[i]t is a fair and reasonable demand on the part of a sovereign [in our federal system] that the air over its territory should not be polluted on a great scale … by the act of persons beyond its control.

This week, the Supreme Court gave modern meaning to its decision from over a century ago. The Justices peppered attorneys with questions about the Cross-State Air Pollution Rule, and the questions indicated that they recognize the important role of the federal government in protecting the citizens in downwind states from upwind pollution sources.  Indeed, modern air quality monitoring systems, measurements of the emissions from smokestacks, and advanced modeling plainly show that interstate transport is a serious 21st century air pollution problem.

EPA estimates that about 30 percent to 90 percent of smog and 50 percent to 90 percent of soot pollution in areas that are out of compliance with national health-based air quality standards are caused by power plants, factories and other sources in states upwind.

Unfortunately, when EPA stepped in to address the issue (which the Clean Air Act also requires) with its science-based and cost-effective Cross-State Air Pollution Rule, the D.C. Circuit Court of Appeals overturned the Rule.

EDF joined EPA, plus a host of other environmental and public-health organizations, states and cities, and power companies in filing briefs with the Supreme Court asking it to overturn the D.C. Circuit’s decision. Several more parties, representing a wide-range of interests and expertise, filed amicus (or “friend of the Court”) briefs in support of EPA’s clean air protections.

Fortunately, during this week’s oral argument a number of Supreme Court Justices seemed open to EPA’s cost-effective solution to the difficult problem of interstate air pollution.

As the Wall Street Journal reported, the Justices:

 expressed sympathy for the Environmental Protection Agency's approach to air pollution that crosses state lines.

One of the most noteworthy moments in this week’s argument occurred when Justice Breyer said:

with this [Cross-State] plan, we get the job done at much lower cost.  Now, where in the statute does it say they can’t do that?

Similarly, Justice Kagan stated:

what the EPA said here was . . . we’re going to distinguish between States that . . . have put a lot of technology and a lot of money into this already and on the other hand States that have lots of cheap and dirty emissions. And why isn’t that a perfectly rational thing to do under this very statute?

At Environmental Defense Fund, we have fought hard for these clean air safeguards — from their genesis to the highest Court in the land — so that 240 million Americans can breathe easier. Hopefully, the Supreme Court will make that possible by ruling in favor of clean air.

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