On March 29, 2013, several environmental advocacy groups (“Petitioners”) filed a Writ of Certiorari with the Supreme Court of the United States (“Supreme Court”), requesting review of the U.S. Court of Appeals for the District of Columbia Circuit’s (“D.C. Circuit”) vacatur of the Cross-State Air Pollution Rule (“CSAPR”). Petitioners sought review on grounds that the D.C. Circuit exceeded its statutory authority in its decision, and its decision was inconsistent with court precedent.
EPA adopted CSAPR as a replacement to its Clean Air Interstate Rule (“CAIR”) program, which had also been overturned by the D.C. Circuit. CSAPR addressed the interstate transport of pollutants emitted by electric generating units located in the eastern two-thirds of the country. The D.C. Circuit’s panel decision in the EME Homer City v. EPA case, issued on August 21, 2012, found that EPA had misinterpreted underlying statutory requirements while formulating CSAPR (“August 2012 Decision”). On January 24, 2013, the D.C. Circuit denied a request for an en banc rehearing of its August 2012 Decision (see January 25, 2013 edition of the WER).
In their Writ of Certiorari, Petitioners made three principle arguments to the Supreme Court. First, Petitioners argued that the D.C. Circuit’s August 2012 Decision addressed issues that were previously not reserved by any objections during CSAPR’s public comment period, a move that is in violation of the D.C. Circuit’s statutory authority. Second, Petitioners argued that the D.C. Circuit improperly imposed its own statutory construction of the Clean Air Act (“CAA”) on CSAPR, instead of deferring to EPA’s construction. Finally, Petitioners argued that the D.C. Circuit’s decision to require EPA to list quantifiable goals for the “Good Neighbor” provision of CSAPR – a provision under the CAA that requires EPA and states to address interstate air pollution that affects downwind states’ ability to comply with certain air quality standards – before states were required to implement the provision, “was jurisdictionally barred, strayed far from the text of [CSAPR], and disrupts settled state and EPA practice.”
In order for the Supreme Court to grant the Writ of Certiorari and hear the case, a minimum of four Justices must agree to the request. Meanwhile, CAIR, having been declared to be legally invalid, still must be replaced. Therefore, EPA must eventually formulate a new transport rule that conforms to the decisions regarding both CAIR and CSAPR.
A copy of the Writ of Certiorari is available here.