The Supreme Court Agrees to Review the CSAPR Decision: Might EPA Avoid Version 3 of the Transport Rule?

The Supreme Court today granted certiorari in EPA v. EME Homer City, the challenge to EPA’s Cross-State Air Pollution Rule, or CSAPR.  The Court of Appeals for the District of Columbia had struck down the rule, over a fairly blistering dissent from Judge Judith Rogers.

Speculation over the reasons why the Supreme Court takes a case is often pointless, but I will say this:  Consideration of the history of EPA’s rulemaking leads to the conclusion that the rule should be upheld.

The D.C. Circuit struck down EPA’s original transport rule, known as CAIR, in 2008, in North Carolina v. EPA, in large part because EPA had proposed an interstate trading program not authorized by the Clean Air Act.  That trading program did not ensure that each upwind state controlled its “significant contribution” to downwind pollution.  I thought – and I’m sure EPA did as well – that, in promulgating CSAPR, it had pretty much done precisely what the court in North Carolina v. EPA had told it to do.

Unfortunately, the District of Columbia disagreed, concluding that the CSAPR could require upwind states to reduce their emissions by more than the “significant contribution” that they made to downwind pollution.  Following the decision in EME Homer City v. EPA, it was not clear to me that EPA could ever promulgate a rule that would actually satisfy the Court of Appeals.  That may be an exaggeration, but it is undoubtedly true that the level of precision required by the Court Appeals seems inconsistent with traditional rules of statutory construction and deference to agency implementation.

The unfortunate irony here is that, whatever the relevant interpretive niceties, a trading rule would be the most efficient way to implement this part of the CAA, but there is no realistic possibility that Congress will give EPA that authority.  Conservatives in Congress would rather complain about EPA rules than give it the authority to regulate in as cost-effective a manner as possible.

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