June 27, 2013

SCOTUS to hear Clean Air Act case

By Damien M. Schiff Senior Attorney

Following last week’s dismissal of United States Forest Service v. Pacific Rivers Council, the Supreme Court had no environmental law case on its docket for next term.  That changed on Monday, when the Court granted review in consolidated cases from the DC Circuit, Environmental Protection Agency v. EME Homer City Generation LP and American Lung Association v. EME Homer City Generation LP.  The cases concern EPA’s interstate pollution rule interpreting the Clean Air Act’s so-called “good neighbor” provision.  Basically, the law requires that upwind states moderate their emissions so as not to contribute the violation of air quality standards in downwind states.  EPA’s rule requires upwind states to moderate their emissions to the extent economically feasible, regardless of whether such moderation leads to upwind states cleaning up more than their fair share of the pollution.  The DC Circuit ruled that EPA’s interpretation was inconsistent with the statute, which the court interpreted not to require upwind states to remedy more than their actual pollution contributions.  The Court has granted review on this interpretive question, as well as on a few procedural issues.

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