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

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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.



 


 

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  1. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

  2. As a lawyer who grew up in Fort Wayne (but went to a real law school), it is not that hard to find a mentor in the legal community without your school's assistance. One does not need to pay tens of thousands of dollars to go to an unaccredited legal diploma mill to get a mentor. Having a mentor means precisely nothing if you cannot get a job upon graduation, and considering that the legal job market is utterly terrible, these students from Indiana Tech are going to be adrift after graduation.

  3. 700,000 to 800,000 Americans are arrested for marijuana possession each year in the US. Do we need a new justice center if we decriminalize marijuana by having the City Council enact a $100 fine for marijuana possession and have the money go towards road repair?

  4. I am sorry to hear this.

  5. I tried a case in Judge Barker's court many years ago and I recall it vividly as a highlight of my career. I don't get in federal court very often but found myself back there again last Summer. We had both aged a bit but I must say she was just as I had remembered her. Authoritative, organized and yes, human ...with a good sense of humor. I also appreciated that even though we were dealing with difficult criminal cases, she treated my clients with dignity and understanding. My clients certainly respected her. Thanks for this nice article. Congratulations to Judge Barker for reaching another milestone in a remarkable career.

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