Supreme Court Upholds EPA Authority to Regulate Cross-State Air Pollution

An April 29 Washington Post article reported on the United States Supreme Court’s recent decision upholding the authority of the United States Environmental Protection Agency (EPA) to regulate cross-state air pollution under the Clean Air Act.  The EPA has long struggled with how to handle air pollution that crosses state boundaries and proposed rules in 2011.  The rules were challenged by affected states and industries and struck down in lower federal courts.

As previously reported on Conduit Street, Maryland joined with seven other states in 2013 to petition EPA to help curb the air pollution generated “upwind” by states in the Midwest and South.  The Maryland Department of the Environment estimates that at least 70 percent of Maryland’s ozone pollution is generated by other states.  Ozone concentrations in parts of Maryland significantly exceed federal safety levels, leading to increased deaths and health complications due to air pollution.

From the article:

But the Supreme Court ruled 6 to 2 that the latest effort could be implemented, with Justice Ruth Bader Ginsburg writing for the majority that the agency must have leeway to confront the “complex challenge” of interstate pollution.  …

The agency was being more efficient and equitable, she said, enacting a rule that “subjects to stricter regulation those states that have done relatively less in the past to control their pollution.”

The article also noted the split among in the court over the issue:

Ginsburg was joined by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan. Justices Antonin Scalia and Clarence Thomas issued a scathing dissent, which Scalia read in part from the bench, and Justice Samuel A. Alito Jr. recused himself from the case.  …

The problem, [Scalia] said, is that there is “zero” in the law that allows such an approach.  …

He called the majority’s opinion pulled from thin air —“Look, Ma, no hands!” — and said there was a price for such pragmatism.  …

Ginsburg had the last word, however, and it came from the Gospel according to John:

“The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.”

May 2 WYPR 88.1 FM Discussion on Supreme Court Decision by Fraser Smith and Karen Hosler


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