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Decisive Supreme Court Win for Clean Air and Public Health

In a huge and perhaps unexpected win for the EPA, the Supreme Court on April 29 reversed an appellate court panel ruling that had rejected their attempt to regulate interstate air pollution caused by about 1,000 coal-fired power plants in 28 states.
May 1, 2014, 5am PDT | Irvin Dawid
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They must be celebrating at the Environmental Protection Agency. After a panel of the United States Court of Appeals for the District of Columbia ruled 2-1 against EPA's Cross-State Air Pollution Rule, also known as the "good-neighbor rule" last August, the Supreme Court ruled 6-2, with Justice Samuel Alito recused, to reverse that ruling in "Environmental Protection Agency v. EME Homer City Generation."  Chief Justice John Roberts and Justice Anthony Kennedy sided with the court's four liberal justices.

The ruling comes a mere two weeks after another landmark victory on deadly mercury emissions at the same Court of Appeals that had rejected the cross-state regulation in August, 2012.

So, what does this ruling do for clean air and public health? "The EPA rule focused on reducing emissions of nitrogen oxides and sulfur dioxide, both associated with higher rates of heart attacks and respiratory illnesses. The agency said its rule would improve air quality in thousands of counties in the eastern, central and southern U.S.," write Brent Kendall and Cassandra Sweet.        

"In addition to contributing to the formation of ground-level ozone, and fine particle pollution, NO2 is linked with a number of adverse effects on the     respiratory system," according to the EPA. "SOx can react with other   compounds in the atmosphere to form small particles. These particles penetrate deeply into sensitive parts of the lungs and can cause or worsen respiratory disease, such as emphysema and bronchitis, and can aggravate existing heart disease, leading to increased hospital admissions and premature death," states the EPA Health webpage on SO2.

On an economic level, the court ruling "could further threaten the viability of some aging coal plants, which already face other market and regulatory pressures," write Kendall and Sweet.

There is no doubt this will add some cost pressures," said University of Notre Dame law professor Bruce Huber. "This is an exceedingly important opinion," he said, adding that the EPA "has been trying to deal with this issue for decades and has always run into hurdles in court.

Almost the entire eastern half of the U.S. (see map), from Minnesota south to Texas; New York south to Georgia, and all states in between, "may have to adopt new pollution controls or reduce operations" in order to "reduce emissions that hurt air quality in states located downwind," the reporters write.

The ruling may be felt most acutely in Texas, where Luminant, a large power firm owned by Energy Future Holdings Co., has said it would have to shut down two coal-plant units if the pollution rules went into effect, and might have to spend $1.5 billion to install pollution-control equipment at other plants.

The effect on Texas is compounded by one of the largest bankruptcies in U.S. history, that of Energy Future Holdings, formerly TXU Corp.

In the Journal's editorial, "The EPA Unchained", which predictably sides with the opinion of strongly-dissenting Justice Antonin Scalia, they opine that the EPA rule "is part of the Administration's agenda of imposing via regulation what it can't get through Congress, even a Democratic Senate." However, as reporters Kendall and Sweet write, the rule "was intended to replace a Bush administration effort that suffered a defeat in the same appeals court. The D.C. Circuit said the Bush-era rule had several flaws, including not providing sufficient protection for downwind states."

It would appear that the Supreme Court felt that the revised EPA rule under the Obama administration got it right this time. Kudos to EPA Administrator Gina McCarthy and her staff.

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Published on Wednesday, April 30, 2014 in The Wall Street Journal - Politics and Policy
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