What The Supreme Court’s Latest Air Pollution Ruling Means

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On Tuesday morning, the Supreme Court issued a strong 6-2 ruling that upheld how the Environmental Protection Agency decided to regulate air pollution that crosses state boundaries under the Clean Air Act. This decision has major consequences for millions across the country who suffer from breathing air pollution.

“Today’s ruling means that the big polluters’ days of dumping pollution on our citizens without consequence are over,” said Senator Sheldon Whitehouse (D-RI) in a statement. “EPA will now be able to do its job and protect the American people from dirty air, and I applaud the Court for its ruling.”

The case involved a challenge to EPA’s “Cross-State Air Pollution Rules,” (with the peculiar abbreviation CSAPR). When a power plant emits carbon dioxide, soot, sulfur dioxide, nitrogen oxide, and mercury, those pollutants don’t stay put inside the borders of any particular state. “Pollution does not respect state borders or know the difference between lungs in the Midwest or lungs in New England,” Senator Ed Markey (D-MA) said in a statement.

This complicates how the EPA carries out Congress’ instructions under the Clean Air Act — one “downwind” state can find it much more difficult to meet federal air standards when pollution from an “upwind” state is a significant cause of the pollution. Under the Rule’s “good neighbor” provision, the EPA can lower emissions in higher-polluting upwind states to allow downwind states to meet their standards.

Connecticut, for example, could drop all of its emissions to zero, and the pollution blowing in from four upwind states would cause it to fail to meet Clean Air Act standards. Those neighbor states “contribute more on their own to ozone pollution in New Haven than Connecticut itself does,” according to a brief filed by the federal government.

In 2008, the D.C. Circuit Court of Appeals struck down the George W. Bush Administration’s CSAPR rules for not protecting downwind states from upwind pollution enough. In 2012, the same court found that the Obama Administration’s version of the rules were too harsh on the upwind states — essentially not protecting those states from having to reduce pollution. This was the question placed before the Supreme Court after the 2-1 decision of the D.C. Circuit Court of Appeals in 2012: should these rules be struck down because the law does not specify how exactly these states must address air pollution? Or can the EPA resolve it through regulation?

The Court’s majority (consisting of Ginsburg, Roberts, Kennedy, Breyer, Sotomayor, and Kagan) found that the Environmental Protection Agency was right to consider costs in setting these “good neighbor” standards. What Ginsburg and the majority mean by “costs” is the impact on downwind states caused by the pollution emitted upwind. The rule limits sulfur dioxide (SO2) and nitrogen oxide (NOX) emissions, which react in the atmosphere to form smog and ozone. According to the EPA, the CSAPR rule will prevent 13,000 to 34,000 premature deaths, 1.8 million days of missed work or school, 400,000 cases of aggravated asthma, 15,000 non-fatal heart attacks, 19,000 hospital and emergency department visits, and 19,000 cases of acute bronchitis. “People who live downwind of these major polluters need this decision, because the ozone and particle pollution in their communities threatens their lives,” the American Lung Association said in a statement.

The 14 states that sued the EPA along with numerous power companies over the rules in 2012 (Alabama, Florida, Georgia, Indiana, Kansas, Louisiana, Michigan, Nebraska, Ohio, Oklahoma, South Carolina, Texas, Virginia, and Wisconsin) are responsible for over half of the sulfur dioxide and nitrogen oxide air pollution in the country, according to a 2012 Center for American Progress issue brief.

The problem of interstate air pollution is exactly why the constitution exists — states could never resolve it by themselves. Justices Scalia and Thomas disagreed with the majority, blaming regulatory overreach for the conflict and concluding that the Clean Air Act does not give EPA the ability to make these decisions over the states. Justice Alito “took himself out” of the process “without giving a reason,” according to SCOTUSblog.

If the Court had not overturned the D.C. Circuit’s decision, the rules would not have gone into place. This would have placed an extra-statutory hurdle before the EPA that it would have found nearly impossible to meet — ensuring many states would not have resolved these air pollution problems.

Now that the Supreme Court has upheld the rules, the case is remanded back to the D.C. Circuit and the EPA will decide how exactly the rule gets implemented from here.

“It also means that there are six Justices on the Court — including Chief Justice Roberts and Justice Kennedy — who are willing to follow the text of the Clean Air Act where it leads, recognizing that the Act provides the EPA with ample authority to address some of the major environmental challenges of our time,” Tom Donnelly, counsel at the progressive think tank Constitutional Accountability Center told ThinkProgress.

“Today’s ruling helps us all breathe a little easier: it reduces harmful pollutants from coal-fired power plants, improves the health of millions of Americans, and allows the EPA to focus on reducing the biggest contribution to global warming from coal-fired power plants, carbon dioxide,” said Danielle Baussan, Managing Director of Energy and Environment Policy at the Center for American Progress.

Nitrogen oxides are little-known greenhouse gases, and while those gases and sulfur dioxide are the target of the rules, their implementation will have some consequences for carbon dioxide emitted from the power sector. Zack Fabish, staff attorney at the Sierra Club, told ThinkProgress that with these rules in place,” dirtier energy sources that are more greenhouse gas intensive will compete more fairly with clean renewable power like wind and solar.” This does not mean that the plants will close down, but the pollution control systems they will install do cost money — cleaner sources do not need to install them because they already emit no air pollution. This more level playing field means more low-carbon energy can make it on the grid.

The CSAPR rule, combined with the mercury and air toxic standards rule, could lead to the retirement of 60 gigawatts of coal-fired power plants by 2020.