Indiana among states wanting SCOTUS to clear the air on pollution standard

Back to TopCommentsE-mailPrintBookmark and Share

A coalition of 14 states, including Indiana, are headed to the Supreme Court of the United States Dec. 10 to argue that the U.S. Environmental Protection Agency has overstepped its authority, again, in trying to regulate air pollution in upwind states.

At issue is the Cross-State Air Pollution Rule, known as CSAPR or the Transport Rule. This regulation requires upwind states to reduce their power plant emissions that contribute to the ozone and fine particle matter in downwind states.

The 14 states assert the EPA overreached its statutory authority by imposing a federal implementation plan before allowing the states to submit their own implementation plans. Under the terms set by the Clean Air Act, Washington, D.C., and the individual states engage in a regime of cooperative federalism where the federal administration sets the standards then the states offer their proposals for meeting those standards.

The EPA contends it had previously found that the states subject to the Transport Rule had either submitted an inadequate SIP or failed to tender a plan altogether.

“Fundamentally, this case is about federalism and agency consideration of undefined statutory terms,” said Kevin Lyskowski, partner in the Washington, D.C., office of Faegre Baker Daniels. “It’s an interesting and significant case. There’ll be a lot of people looking to see how the Supreme Court rules.”

Neither side disputes that the Clean Air Act employs a regime of cooperative federalism and that states get the first crack to meet the federal standards, Lyskowski said. The disagreement centers about what “first crack” means.

The U.S. Supreme Court has consolidated two cases concerning the Transport Rule, EPA v. EME Homer City Generation, 12-1182, and American Lung Association v. EME Homer City Generation, 12-1183, and is allowing 90 minutes for oral arguments.

Twenty-eight states are subject to the Transport Rule. They have split into two groups with one group supporting the standard and the other group opposing. Fourteen states, led by Texas and including Indiana, are fighting the rule.

The Indiana Attorney General’s Office as the state of Indiana’s lawyer signed on the respondent brief filed by Texas.

“Challenges filed by states are one way federal regulatory actions are tested to determine whether they are valid,” said Bryan Corbin, spokesman for the Indiana Attorney General. “Such challenges are a normal and healthy part of the process and they respectfully bring to the nation’s highest court the question of federal overreach so the Court can decide.”

The Transport Rule was formulated after the U.S. Court of Appeals for the D.C. Circuit found the EPA exceeded its statutory authority with the 2005 Clean Air Interstate Rule.

The court allowed the agency to develop a replacement rule but kept the CAIR in place until a new standard took its place.

Finalized in July 2011, the Transport Rule was immediately challenged. A split U.S. Court of Appeals for the District of Columbia vacated the new rule in August. 2012, finding, again, the EPA had overstepped.

The Court of Appeals agreed that the EPA did not allow the states to develop their own plans for emission reductions. It also held that the Transport Rule could require upwind states to cut their pollution by more than their own contributions to downwind states’ nonattainment.

“I think it’s significant when any court strikes down a federal regulation,” Lyskowski said. “This is a regulation that had broad impact.”

In March 2013, the EPA petitioned the Supreme Court for a writ of certiorari. The agency questioned whether the Court of Appeals had jurisdiction to consider the challenges to CSAPR. It also raised the issues of whether states are excused from reducing emissions until the EPA adopts a new rule and whether the Clean Air Act requires the agency to consider only each upwind state’s proportionate responsibility for each downwind air quality problem.




Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues