Court Hears Oral Argument on Cross-State Air Pollution Rule

On April 13, the Court of Appeals for the D.C. Circuit heard oral argument on EPA’s Cross-State Air Pollution Rule (CSAPR). Court watchers who attended the arguments think the case could go either way based on the judges’ questioning.

The CSAPR seeks to address the contribution of regional transport of air pollutants to downwind nonattainment of National Ambient Air Quality Standards (NAAQS) for ozone and fine particular matter. The EPA issued the final rule in July 2011. It requires 28 states, including Wisconsin, reduce power plant emissions of nitrogen oxides and sulfur dioxide that cross state lines. The rule would establish emission “budgets” for sulfur dioxide and nitrogen oxides for the affected upwind states, and allow limited trading of allowances. The D.C. Circuit stayed CSAPR just days before it was to take effect, pending a decision on the merits.

The April 13 arguments in the case, EME Homer City v. EPA, D.C. Cir., No. 11-1302, were heard by a three judge panel that included Judges Thomas Griffith, Brett Kavanaugh, and Judith Rogers. According to Bloomberg BNA reporter Jessica Coomes, “Griffith appeared to be a possible swing vote…Judge Judith Rogers's questions were more critical of the petitioners' arguments, and Judge Brett Kavanaugh appeared skeptical of EPA's regulation.”

The Environmental Defense Fund’s David Lifland provided a complete recap of the arguments on the EDF’s blog:

The courtroom was packed this morning, as attorneys challenging and defending the rule were questioned by Judges Rogers, Griffith, and Kavanaugh.

The questioning lasted more than two hours.

Opponents of the rule were represented by two lawyers – one for states and one for power companies.

EPA was represented by three attorneys from the Department of Justice.

In addition, three lawyers spoke for intervenors supporting EPA: one for governments (nine states and several cities); one for power companies supporting the rule; and one for public health and environmental organizations — including EDF.

The court first explored one of the claims by the opponents: that EPA lacked the statutory authority to issue federal plans requiring emission reductions without first giving the states more time to submit their own proposed plans.

The opponents claimed that states couldn’t submit their own plans until EPA told them the exact amount of necessary emission reductions.

Judge Rogers pointed out that a similar prior rule was issued in the form of federal plans – and added that the statute doesn’t say that states have to wait for EPA to act before submitting state plans.

Judge Griffith told the opponents’ attorney:

“You don’t have a strong plain text argument.”

However, when the same issue came up later in the proceeding, Judge Kavanaugh questioned EPA’s counsel about whether it was practical for states to submit plans before EPA quantified the emission reduction requirements.

Another of the opponents’ major claims was that EPA acted “impermissibly” by:

• Using an air quality impact trigger to determine which states should be covered by the rule
• Then using a cost-effectiveness measure to define the required emission reductions
• Then not going back to repeat the air quality impact analysis to see if the emission reductions would take the states below the trigger point for being covered under the rule

Judge Rogers noted that the court had accepted a similar two-part methodology in previous cases.

And both Judge Rogers and Judge Griffith questioned whether the opponents had waived this claim by failing to raise it specifically during EPA’s rulemaking.

The opponents also argued that EPA had failed to sufficiently validate its air quality modeling — raising concerns about whether the required emission reductions based on that modeling were arbitrary.

EPA’s counsel responded by describing how the air quality model was extensively validated for 2005 — the most recent period with data that could be used for the purpose.

EPA’s counsel argued that it was entirely reasonable for EPA to use the validated model to make projections for later years.

The opponents’ counsel argued that point vigorously — comparing EPA’s modeling to a car that is nice and shiny, but won’t start.

EPA’s counsel won a big laugh in the courtroom with his response. He said that, after having shown that the car could drive to the 7-11, EPA was justified in believing that the car could drive a little further down the street to the Starbucks.

The judges were extremely attentive to what both sides had to say throughout the argument. They also asked each of the three lawyers representing EPA to briefly return to the podium a second time to address final points — after all the other attorneys had spoken for the last time.

BNA Bloomberg also highlighted the “significant contribution” methodology argument discussed above. BNA believes “Challengers to the Environmental Protection Agency's interstate air pollution transport rule may have a ‘significant problem’ because one of their key arguments may not have been raised during the rule's public comment period…”

The court is expected to issue its decision this summer.

Additonal information on the CSAPR is available on the Great Lakes Legal Foundation Regulatory Watch website.

This post was authored by GLLF staff attorney Emily Kelchen.