Court Hears Oral Argument on Cross-State Air Pollution Rule

Today, the U.S. Court of Appeals in Washington D.C. heard oral arguments on legal challenges to EPA’s Cross-State Air Pollution Rule. 

As I wrote yesterday, the Cross-State Air Pollution Rule reduces emissions of sulfur dioxide and nitrogen oxides from power plants in 28 eastern states.

EPA issued the rule to implement the “Good Neighbor” provision of the Clean Air Act, which prohibits emissions from power plants in one state that contribute significantly to harmful pollution levels in other states.

The courtroom was packed this morning, as attorneys challenging and defending the rule were questioned by Judges Rogers, Griffith, and Kavanaugh.

The questioning lasted more than two hours. 

Opponents of the rule were represented by two lawyers – one for states and one for power companies.

EPA was represented by three attorneys from the Department of Justice.

In addition, three lawyers spoke for intervenors supporting EPA: one for governments (nine states and several cities); one for power companies supporting the rule; and one for public health and environmental organizations — including EDF.

The court first explored one of the claims by the opponents: that EPA lacked the statutory authority to issue federal plans requiring emission reductions without first giving the states more time to submit their own proposed plans.

The opponents claimed that states couldn’t submit their own plans until EPA told them the exact amount of necessary emission reductions.

Judge Rogers pointed out that a similar prior rule was issued in the form of federal plans – and added that the statute doesn’t say that states have to wait for EPA to act before submitting state plans. 

Judge Griffith told the opponents’ attorney:

You don’t have a strong plain text argument.

However, when the same issue came up later in the proceeding, Judge Kavanaugh questioned EPA’s counsel about whether it was practical for states to submit plans before EPA quantified the emission reduction requirements.

Another of the opponents’ major claims was that EPA acted “impermissibly” by:

• Using an air quality impact trigger to determine which states should be covered by the rule
• Then using a cost-effectiveness measure to define the required emission reductions
• Then not going back to repeat the air quality impact analysis to see if the emission reductions would take the states below the trigger point for being covered under the rule

 Judge Rogers noted that the court had accepted a similar two-part methodology in previous cases. 

 And both Judge Rogers and Judge Griffith questioned whether the opponents had waived this claim by failing to raise it specifically during EPA’s rulemaking.

The opponents also argued that EPA had failed to sufficiently validate its air quality modeling — raising concerns about whether the required emission reductions based on that modeling were arbitrary. 

EPA’s counsel responded by describing how the air quality model was extensively validated for 2005 — the most recent period with data that could be used for the purpose.

EPA’s counsel argued that it was entirely reasonable for EPA to use the validated model to make projections for later years.

The opponents’ counsel argued that point vigorously — comparing EPA’s modeling to a car that is nice and shiny, but won’t start. 

EPA’s counsel won a big laugh in the courtroom with his response. He said that, after having shown that the car could drive to the 7-11, EPA was justified in believing that the car could drive a little further down the street to the Starbucks.

The judges were extremely attentive to what both sides had to say throughout the argument. They also asked each of the three lawyers representing EPA to briefly return to the podium a second time to address final points — after all the other attorneys had spoken for the last time.

It was an intense and fascinating morning for those of us in attendance.

Now, we all just wait for the court’s decisions … most likely this summer.

In the meantime, read more about the Cross-State Air Pollution Rule, including its effects on your state. You can also read all the briefs filed in the case on our website.