Students and faculty in the Interdisciplinary Environmental Clinic (IEC) at Washington University School of Law in St. Louis have filed an amicus brief on behalf of air pollution scientists in an important environmental case before the U.S. Supreme Court. The case, EPA v. EME Homer City Generation LP, involves a challenge to the Environmental Protection Agency’s Cross-State Air Pollution Rule (CSAPR), which seeks to protect the health of citizens of downwind states by placing limits on air pollution that crosses state lines. Electric power companies and several states and local governments challenged the rule as overreaching.
The Supreme Court heard oral arguments in the case Dec. 10 and will rule in coming months. The court took the unusual step of extending oral argument by an additional 30 minutes, underscoring the significance and complexity of this case.
“The Supreme Court will have to decide whether EPA acted within its authority under the Clean Air Act when it required upwind states to control the amount of air pollution they send across the country,” said IEC attorney Liz Hubertz, JD, who filed the brief in support of EPA’s rule.
Added IEC scientist Ken Miller, who also worked on the brief: “Interstate air transport of pollutants is a thorny technical problem. The EPA rule, developed after careful consideration of alternatives and extensive air quality and transport modeling, is a reasonable scientific solution for apportioning and controlling cross-border pollution.”
Third-year law student Raya Rivera and fellow IEC clinic student Jennifer Elwell, a senior in the School of Engineering & Applied Science, contributed to the brief as well. The brief contains the arguments of 12 leading atmospheric scientists and air-quality modeling experts from such leading universities as Massachusetts Institute of Technology, Stanford, Columbia and Duke.
The scientists explain why the approach the EPA used to quantify upwind states’ significant contributions to air pollution in downwind states and determine upwind states’ emissions reduction obligations is a scientifically reasonable way to meet the interstate pollution requirements of the Clean Air Act. Many environmental and public health groups, such as the American Lung Association, as well as a number of cities and states support the EPA rule.
EPA promulgated the CSAPR rule in 2011, and it was immediately challenged in federal court. In 2012, in a 2-1 decision, the D.C. Circuit federal appeals court held that the EPA exceeded its authority under the Clean Air Act when the EPA failed to heed what the opinion called “red lines,” or constraints imposed by the statute itself, thereby leading to “overcontrol” of cross-state pollution in some upwind states. Judge Judith W. Rogers, in a passionate dissent, observed that these constraints made their first appearance in the appellate court, and that it would be difficult for any rule to meet the panel majority’s red lines.
Amici state in the brief: “The constraints imposed by the lower court’s opinion are not based on a realistic scientific understanding of the complexity of interstate air transport. EPA’s Transport Rule is a reasonable implementation of the good neighbor provision. Therefore the rule should be allowed to stand.”
MSNBC coverage of the case featured a reproduced “air pollution transport” map, which Hubertz used in the brief, and cited Hubertz as saying: “The D.C. Circuit’s opinion was a simple answer to a complicated question. We think it’s all but impossible to comply with the D.C. Circuit’s red lines and still take into account how air pollution actually works.”