ILNews

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.



 


 

ADVERTISEMENT

Post a comment to this story

COMMENTS POLICY
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
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Hi there I really need help with getting my old divorce case back into court - I am still paying support on a 24 year old who has not been in school since age 16 - now living independent. My visitation with my 14 year old has never been modified; however, when convenient for her I can have him... I am paying past balance from over due support, yet earn several thousand dollars less. I would contact my original attorney but he basically molest me multiple times in Indy when I would visit.. Todd Woodmansee - I had just came out and had know idea what to do... I have heard he no longer practices. Please help1

  2. Yes diversity is so very important. With justice Rucker off ... the court is too white. Still too male. No Hispanic justice. No LGBT justice. And there are other checkboxes missing as well. This will not do. I say hold the seat until a physically handicapped Black Lesbian of Hispanic heritage and eastern religious creed with bipolar issues can be located. Perhaps an international search, with a preference for third world candidates, is indicated. A non English speaker would surely increase our diversity quotient!!!

  3. First, I want to thank Justice Rucker for his many years of public service, not just at the appellate court level for over 25 years, but also when he served the people of Lake County as a Deputy Prosecutor, City Attorney for Gary, IN, and in private practice in a smaller, highly diverse community with a history of serious economic challenges, ethnic tensions, and recently publicized but apparently long-standing environmental health risks to some of its poorest residents. Congratulations for having the dedication & courage to practice law in areas many in our state might have considered too dangerous or too poor at different points in time. It was also courageous to step into a prominent and highly visible position of public service & respect in the early 1990's, remaining in a position that left you open to state-wide public scrutiny (without any glitches) for over 25 years. Yes, Hoosiers of all backgrounds can take pride in your many years of public service. But people of color who watched your ascent to the highest levels of state government no doubt felt even more as you transcended some real & perhaps some perceived social, economic, academic and professional barriers. You were living proof that, with hard work, dedication & a spirit of public service, a person who shared their same skin tone or came from the same county they grew up in could achieve great success. At the same time, perhaps unknowingly, you helped fellow members of the judiciary, court staff, litigants and the public better understand that differences that are only skin-deep neither define nor limit a person's character, abilities or prospects in life. You also helped others appreciate that people of different races & backgrounds can live and work together peacefully & productively for the greater good of all. Those are truths that didn't have to be written down in court opinions. Anyone paying attention could see that truth lived out every day you devoted to public service. I believe you have been a "trailblazer" in Indiana's legal community and its judiciary. I also embrace your belief that society's needs can be better served when people in positions of governmental power reflect the many complexions of the population that they serve. Whether through greater understanding across the existing racial spectrum or through the removal of some real and some perceived color-based, hope-crushing barriers to life opportunities & success, movement toward a more reflective representation of the population being governed will lead to greater and uninterrupted respect for laws designed to protect all peoples' rights to life, liberty & the pursuit of happiness. Thanks again for a job well-done & for the inevitable positive impact your service has had - and will continue to have - on countless Hoosiers of all backgrounds & colors.

  4. Diversity is important, but with some limitations. For instance, diversity of experience is a great thing that can be very helpful in certain jobs or roles. Diversity of skin color is never important, ever, under any circumstance. To think that skin color changes one single thing about a person is patently racist and offensive. Likewise, diversity of values is useless. Some values are better than others. In the case of a supreme court justice, I actually think diversity is unimportant. The justices are not to impose their own beliefs on rulings, but need to apply the law to the facts in an objective manner.

  5. Have been seeing this wonderful physician for a few years and was one of his patients who told him about what we were being told at CVS. Multiple ones. This was a witch hunt and they shold be ashamed of how patients were treated. Most of all, CVS should be ashamed for what they put this physician through. So thankful he fought back. His office is no "pill mill'. He does drug testing multiple times a year and sees patients a minimum of four times a year.

ADVERTISEMENT