A century-old problem: Neighbor states' air pollution

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Emilian Robert Vicol/<a href="http://www.flickr.com/photos/free-stock/6816851232/">Flickr</a>

Recently, attorneys for the Environmental Protection Agency urged the U.S. Supreme Court to review a decision of the D.C. Circuit Court in a case called EME Homer City Generation. In that case, the attorneys said, the lower court “committed a series of fundamental errors that, if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.” 

Update 4/29/14: The Supreme Court of the United States has overruled the D.C. Circuit Court of Appeals’ decision involving EPA’s Cross-State Air Pollution Rule.

In EME Homer City Generation, which was decided last summer, a divided court overturned the Cross-State Air Pollution Rule, one of the EPA’s most important (and cost-effective) clean air programs. It is designed to reduce harmful smokestack pollution from power plants, which can drift for hundreds of miles and adversely affect distant communities.

Major public health consequences at stake

The rule, once put into practice, will save up to 34,000 lives per year and provide $110 to $280 billion per year in net health benefits. Without it, millions of people and entire communities will remain exposed to dangerous levels of pollution.

The Clean Air Act’s “good neighbor” provisions direct states to “prohibit” emissions that are carried downwind and contribute to unhealthy air pollution in neighboring states.  If states do not live up to their good neighbor obligations, then the Clean Air Act requires EPA to step in.  According to 2011 estimates, air pollution from neighboring states accounted for more than three-quarters of local air pollution in many areas struggling to comply with EPA’s health-based standards. As this data shows, millions of Americans are breathing unhealthy air that originates in neighboring states.  

Nonetheless, numerous power companies and several states had challenged the Cross-State Rule in the D.C. Circuit. In the court’s 2-1 decision, the majority said that EPA exceeded its authority under the Clean Air Act because the Cross-State Rule might have made the air too clean in some communities that are afflicted by harmful air pollution from other states. The ruling essentially gives upwind states the right to send large amounts of smokestack pollution to downwind states and communities, so long as the level of air pollution in the affected downwind communities meets EPA’s standards. In other words, downwind communities do not a have a right to truly clean air, just air that is “clean enough.” 

The majority also found in the Clean Air Act several “red lines” preventing EPA from reducing harmful interstate air pollution, despite the fact that none of those “red lines” appear anywhere in the text of the Act itself.

In her vigorous dissenting opinion, Judge Judith Rogers explained that the majority “erased from the statute by judicial fiat” the Clean Air Act’s “mandatory, unambiguous requirements” that upwind states reduce emissions that afflict downwind states. (Emphasis in original.)

Appeal to the Supreme Court

In asking that the Supreme Court review this decision, the EPA is essentially asking for the right to implement the Cross-State Rule, and to fulfill its Clean Air Act obligations. EDF, along with the American Lung Association, Clean Air Council, Natural Resources Defense Council and the Sierra Club have also filed a petition seeking Supreme Court review and a reversal of the D.C. Circuit decision. The clean air safeguards of the Cross-State Rule need to be restored.

A fair and reasonable demand

The problem of air pollution crossing state lines is an old one.  In 1907, the State of Georgia asked the U.S. Supreme Court to stop dangerous air pollution that was blowing in from Tennessee. In granting Georgia’s request, U.S. Supreme Court Justice Oliver Wendell Holmes, Jr. wrote:

“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source.”

Georgia v. Tennessee Copper Co., 206 U.S. 230, 238 (1907).

Judge Judith Rogers, in her dissent in EME Homer City, expressed similar concerns about the citizens of downwind states, who face air pollution from “persons beyond [their] control,”  which is precisely why the Cross-State Rule is needed.

The rule, if applied, would do no more (or less) than safeguard the air quality of millions of Americans who depend on EPA to protect them from pollution that comes from beyond the borders of their own states.  No wonder, when the U.S. Government called for the Supreme Court to review and reverse EME Homer City, they warned that, should the decision stand, it would “seriously impede the EPA’s ability to deal with a grave public health problem.”   

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Graham McCahan

Graham McCahan

Graham, a native Coloradan, is a staff attorney.  

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