Envtl. Prot. Agency v. EME Homer City Generation, L. P.

The Clean Air Act (CAA) requires national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health, 42 U.S.C. 7408. Once EPA establishes NAAQS, it designates “nonattainment” areas; each state must submit a State Implementation Plan, (SIP), within three years of any new or revised NAAQS. From the date EPA determines that a SIP is inadequate, EPA has two years to promulgate a Federal Implementation Plan (FIP). SIPs must comply with a Good Neighbor Provision, and “contain adequate provisions ... prohibiting .. . any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will ... contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to” NAAQS. In response to flaws in its 2005 Clean Air Interstate Rule, identified by the D. C. Circuit, EPA promulgated the Cross-State Air Pollution Rule (Transport Rule), curbing nitrogen oxide and sulfur dioxide emissions in 27 upwind states to achieve downwind attainment of three NAAQS and providing that an upwind state contributed significantly to downwind nonattainment if its exported pollution produced at least one percent of a NAAQS in a downwind state and could be eliminated cost-effectively. EPA created an annual emissions “budget” for each upwind state and contemporaneously promulgated FIPs allocating each state’s budget among its pollution sources. The D.C. Circuit vacated the rule as exceeding EPA’s authority. The Supreme Court reversed. The CAA does not require that states be given another opportunity to file a SIP after EPA has quantified interstate pollution obligations. Disapproval of a SIP, without more, triggers EPA’s obligation to issue a FIP within precise deadlines. That EPA had previously accorded upwind states a chance to allocate emission budgets among their sources does not show that it acted arbitrarily by refraining to do so in this instance. The Good Neighbor Provision does not dictate a method of apportionment, so EPA had authority to select from among reasonable options; nothing precludes the final calculation from relying on costs. By imposing uniform cost thresholds on regulated states, the rule is efficient and is stricter on states that have done less pollution control in the past and does not amount to “over-control.” View "Envtl. Prot. Agency v. EME Homer City Generation, L. P." on Justia Law