- The Washington Times - Tuesday, December 10, 2013

The fate of key clean-air regulations — central to the President Obama’s larger environmental agenda — now rests with the Supreme Court, which on Tuesday hinted it may throw the administration a lifeline and allow controversial pollution rules to be reinstated.

The high court heard arguments Tuesday in a case that’s pitted the administration against states and the energy industry and one that centers on the Environmental Protection Agency’s so-called good neighbor rule, which was struck down by a lower court last year.

The provision requires more than two dozen “upwind” states, stretching from the Deep South through New York and also encompassing parts of the Midwest, to limit pollution from coal-fired power plants and other sources that drifts to “downwind” states on the East Coast.

The rule was yet another example of the Obama administration’s preference for using the EPA’s broad regulatory powers to achieve his environmental goals without new legislation of the sort Congress is unlikely to pass.

Critics contend the rule will cost both jobs and money; the former as power plants and other facilities could be forced to close, and the latter as states would have to invest millions of dollars in new programs to reduce pollution that flows across state boundaries — even though it’s virtually impossible to prove exactly where “downwind” pollution originates.

The U.S. Court of Appeals for the D.C. Circuit ruled 2-1 last year that the EPA had exceeded its “statutory authority” with the good neighbor measure, formally known as the Cross-State Air Pollution Rule.

But several of the nine justices Tuesday appeared at least somewhat sympathetic to the EPA’s overall aims, and the justices could hand the administration a major legal victory when they issue a ruling next year.

Justice Stephen G. Breyer cited the fact the EPA has been granted by courts wide latitude in how it interprets the Clean Air Act, the central legal underpinning for the good neighbor rule and other steps taken in recent years.

“All the time it happens that people change their minds about how problems are best solved or they cite this problem’s better solved one way and better another way. So if your only point is once they [regulated pollution] a different way, they’ll say, ‘well, what’s unreasonable about changing our way? We’re trying to get the job done,’” he said in response to arguments from Texas Solicitor General Jonathan Mitchell, representing state and local governments that challenged the EPA regulation.

Other justices also seemed to agree with the EPA’s broader authority to protect interstate air quality, and on the need for the federal government to prevent one state from dramatically harming the air quality of another.

Their decision, then, likely will hinge on the specifics of the regulation, which are vague at best and, if implemented, will leave states in the difficult position of figuring out just how much pollution they’re expected to eliminate.

Government attorneys admitted Tuesday that the EPA has yet to establish firm limits or offer concrete guidance to states.

“The head of the state [environmental agency] comes to you and says ‘How much do we have to reduce our emissions to satisfy our requirements?’ And you would tell them what?” Chief Justice John G. Roberts Jr. asked Malcolm Stewart, deputy solicitor general with the Justice Department.

“We would tell them, in all honesty, we don’t know yet. But that’s not a fatal flaw in the argument,” Mr. Stewart said, going on to explain that, under the rule, the EPA would review states’ efforts over a three-year period and step in if the agency determines those states hadn’t done enough.

“The state’s role is to devise something that it believes will carry out its own legal obligations,” Mr. Stewart added.

Tuesday’s Supreme Court arguments represent just one of the many legal challenges to the administration’s environmental agenda, seen by the energy industry and a bipartisan coalition in Congress as a job-killer.

Also on Tuesday, the D.C. Circuit Court heard a challenge to the EPA’s rules limiting mercury and acid gases from power plants. That regulation is scheduled to go into effect in 2015 and would be yet another serious burden for the already beleaguered American coal industry.

In February, the Supreme Court will hear another challenge to the White House’s environmental agenda and will weigh whether the EPA has the authority to regulate greenhouse gases such as carbon dioxide from “stationary sources” such as power plants.