The Wall Street Journal misled about a new Supreme Court case that could make it more difficult for the Environmental Protection Agency (EPA) to enforce regulations that would reduce cross-border air pollution, pretending that it was inappropriate for the federal government to regulate this quintessential interstate problem.
On December 10, the Supreme Court heard oral arguments in EPA v. EME Homer City Generation, a case challenging the EPA's authority to implement regulations to manage and reduce air pollution that drifts from source states into neighboring jurisdictions. Even though the EPA is empowered by Congress to promulgate rules to alleviate these coal plant pollutants through the Clean Air Act (the Act), a number of states and private companies sued the agency, arguing that it had exceeded its regulatory authority.
In a recent editorial, the WSJ complained (again) about the EPA's supposed regulatory overreach in its various attempts to curb acid rain and smog. But the WSJ ignores that air pollution that crosses state lines is a complicated and inherently federal problem with no easy solution, and one that states have failed at solving on their own. Because of national wind patterns, eastern states have become the dumping ground for midwestern and southern air polluters, even while they themselves "have squeezed all the pollution they can out of their own economies."
From the December 9 editorial:
The Environmental Protection Agency's habit of stretching its legal authority faces another reckoning ... when the Supreme Court considers whether the agency can rewrite the Clean Air Act to usurp state responsibilities. This one ought to be in Justice Anthony Kennedy's federalist sweet spot.
The case focuses on the Clean Air Act's “good neighbor” provision that gives EPA the power to oversee remedies when pollution in one state blows into a neighboring state. An upwind state that EPA judges to “significantly contribute” to a downwind state's failure to meet federal standards can be required to limit emissions by a commensurate amount.
Texas and more than a dozen other states as well as private companies challenged EPA in Environmental Protection Agency v. EME Homer City Generation, and in August 2012 the D.C. Circuit Court of Appeals struck down the rule. Judge Brett Kavanaugh wrote for a 2-1 majority that “Congress did not authorize EPA to simply adopt limits on emissions as EPA deemed reasonable.” Democrats cried foul and blamed Judge Kavanaugh for being a Bush appointee, but it's telling that the full D.C. Circuit denied en banc review.
The EPA says in its defense that business should love the rule because it is the most cost-effective, but that isn't necessarily true for certain states. The Administration is also arguing that the states didn't raise their objections loudly enough during the rule-making process, but the states also didn't know how far this EPA would go until the rule was final.
The D.C. Circuit only rarely overturns EPA rules, which shows how out of bounds the cross-state regulation is. The Supreme Court should overturn it for violating the federalist intentions of Congress, but there is also the added judicial incentive to show this increasingly rogue agency that it can't rewrite the law as it pleases.
WSJ also complained that the new rules promulgated by the EPA to minimize the spread of air pollution from one state to another “violate the federalist structure of the Clean Air Act” because they evidently “no longer [give] states a chance to develop their own plans” to meet their “good neighbor” requirements. But this argument ignores the fact that not only has the WSJ itself previously acknowledged that "The EPA is within its legal discretion to reinterpret clean-air laws," but states that refuse to incentivize polluters within their borders to act responsibly in the face of a devastating public health crisis have only themselves to blame when the federal government steps in.
As explained by power plant executives in a 2010 letter to the WSJ, because both technology and the Act offer a solution, it is the states' continued and enabling intransigence that is the problem:
The EPA's air-quality regulations...under the Clean Air Act, which a bipartisan Congress and a Republican president amended in 1990, and many are in response to court orders requiring the EPA to fix regulations that courts ruled invalid.
The electric sector has known that these rules were coming. Many companies, including ours, have already invested in modern air-pollution control technologies and cleaner and more efficient power plants. For over a decade, companies have recognized that the industry would need to install controls to comply with the act's air toxicity requirements, and the technology exists to cost effectively control such emissions, including mercury and acid gases.
The WSJ doesn't mention that the Act as amended explicitly allows the EPA to come up with policy solutions to ensure the Act's mandates are met and states not “contribute significantly” to other states' pollution problems -- something that the agency tried to do by implementing what's known as the “Transport Rule.” According to Supreme Court reporter Lyle Denniston, that rule would have “locate[d] the sources of pollution that degrade air in other states” in order to “impose obligations” on polluters. But this cost-effective scientific approach to a highly complex phenomenon never went into effect because of current industry challenges:
If a giant wind meter capable of detecting pollution could be set up at a state's border, and it accurately measured the amount coming into the state, it would be easy to design a regulatory program that would impose obligations on the “upwind” state to take action to keep from harming air quality in the “downwind” state.
But that is not technically feasible, so some other means must be developed to implement the “good neighbor” policy -- that is, to locate the sources of pollution that degrade air in other states. The policy devised by EPA is formally known as the “State Air Pollution Rule,” but is more popularly known as the “Transport Rule.” That is the rule that the agency and its supporters, including environmental groups, are asking the Supreme Court to revive.
Experts at federal agencies like the EPA are legally permitted and expected to promulgate national rules for interstate problems as mandated by laws like the Clean Air Act -- laws that respect federalism by acting within congressional intent. While right-wing outlets like the WSJ might call it “stretching its legal authority,” actual health experts observe that in addition to their legality, striking down the EPA's rules “would condemn millions of American citizens to suffer preventable harm in violation of the Clean Air Act.” But for the WSJ, keeping the air clean is a violation of the Clean Air Act and the mark of a “rogue agency.”