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Obama Pollution Rules Face Showdowns Tomorrow in Supreme Court, D.C. Circuit

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by Publius
Posted December 09, 2013, 4:52 PM

According to Greenwire:

The Obama administration's efforts to clean up air pollution go on trial tomorrow, as the Supreme Court and a federal appeals court review two landmark rules from President Obama's first term.

In one of the most high-profile environmental cases of the Supreme Court term, the justices will consider U.S. EPA's 2011 rule for air pollution that drifts across states lines. The agency asked the court to take the case after the U.S. Court of Appeals for the District of Columbia Circuit struck the rule down in August 2012.

The D.C. Circuit, meanwhile, will hear a broad challenge from industry groups and several states to EPA's December 2011 mercury and air toxics standards for power plants.

"It's a very important day for EPA and also for the energy sector," said Jacob Hollinger of McDermott Will & Emery, a former EPA air attorney. "Both rules have important implications for power generation. It matters for everyone."

The Supreme Court case centers on EPA's implementation of the Clean Air Act's "good neighbor" provision, which allows the agency to regulate pollutants from one state that "contribute significantly" to violations of air standards in adjacent states for ozone-forming pollutants -- such as sulfur dioxide and nitrogen oxide -- and fine particles, or soot.

Many Eastern states -- including New York, Maryland and Connecticut -- suffer dirty air that drifts in from the Midwest. With the Supreme Court case highlighting the issue this week, eight Northeastern governors today also petitioned EPA to do more to crack down on pollution coming from Appalachia (see related story).

In July 2011, EPA issued the Cross-State Air Pollution Rule, or CSAPR, a regulatory regime that applies to 28 Eastern states. The regulations called for upwind states to cut emissions of ozone-forming gases by installing pollution controls or shutting down power plants.

However, determining where pollution comes from is a murky issue, and industry and several upwind states quickly challenged the regulations and the economic burden they would create.

EPA described in court documents its struggle to curb cross-state pollution.

"In short, at least in the eastern half of the United States," the agency wrote, "the interstate pollution problem is best understood as a dense, spaghetti-like matrix of overlapping upwind/downwind 'linkages' among many states, rather than a neater and more limited set of linkages among just a few." . . .

Tomorrow at 1 pm, the Federalist Society will be hosting a courthouse steps teleforum on the Supreme Court case. Speaking will be Mark DeLaquil, a partner at Baker & Hostetler LLP. FedSoc members can join the call here.

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