On June 24, 2013, the Supreme Court granted the U.S. Environmental Protection Agency’s (“EPA”) and environmental groups’ Petitions for Writs of Certiorari 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”).  Under CSAPR, EPA had required 28 states in the eastern half of the United States to reduce sulfur dioxide and nitrogen oxide emissions from electric utility fossil-fuel-fired power plants that EPA determined were contributing to the inability of downwind states to attain and maintain attainment of air quality standards.  Last August, a divided three-judge panel of the D.C. Circuit overturned the rule.  EPA adopted CSAPR as a replacement to its Clean Air Interstate Rule program, which had also been overturned by the D.C. Circuit.

Petitioners sought review on the grounds that the D.C. Circuit decision exceeded the court’s statutory authority and was inconsistent with court precedent.  Granting a Writ of Certiorari does not decide the case on the merits; it only decides that the Court will take the case.  Given that the vote of only four Justices is needed for the Court to issue a Writ of Certiorari, granting Certiorari does not mean that the full nine-member Court will overturn the D.C. Circuit’s decision.  The Supreme Court will review the following questions:

  1. Whether the court of appeals lacked jurisdiction to consider the challenges to the Clean Air Act on which it granted relief;
  2. Whether states are excused from adopting state implementation plans prohibiting emissions that “contribute significantly” to air pollution problems in other states until after the EPA has adopted a rule quantifying each state’s inter-state pollution obligations; and
  3. Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind state’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind state’s physically proportionate responsibility for each downwind air quality problem.

Oral arguments and a decision are due in the Court’s next term, which starts in October and ends in June 2014.  The two consolidated cases that the Court agreed to hear are American Lung Association v. EME Homer City Generation, No. 12-1183 and EPA v. EME Homer City Generation, No. 12-1182.  Copies of the petitions are available here.