How should Congress and the Environmental Protection Agency (‘EPA’) deal with the complex legal issue of how to allocate responsibility for pollutants produced in one state and carried elsewhere by the wind? The court dealt with this narrow and complex legal issue in EPA v. EME Homer City Generation, L.P. ((EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).)) In EPA v. EME, several state and local governments joined by industry and labor groups petitioned for review of the EPA proposed regulatory scheme for downwind pollutants: “The Transport Rule.” ((Id. at 1589.))
The Transport Rule’s purpose and effect was to “curtail NOx and SO2 emissions of 27 upwind States to achieve downwind attainment of three different National Air Ambient Quality Standards [“NAAQS”] […]” so that the states producing the pollutants would be the states regulated and correspondingly responsible for the final destination of the pollutants. ((Id. at 1596.)) The EPA relied on two factors in establishing the Transport Rule: the “1% Threshold” and the “Control-Cost Analysis.” Should the polluting state pass both of these standards the EPA would target them for heavier regulation. The first part of analysis, the “1% Threshold” simply “excluded as de minimus any upwind state that contributed less than 1% of pollutants.” Should an individual state be found to contribute more than 1% of any individual pollutant, the EPA would then move to the second part of the analysis by which they calculated the cost of curtailing the specific pollution. Therefore, according to the Transport Rule, upwind States would be “obliged to eliminate all and only emissions meeting both of these criteria.” ((Id. at 1597.))
The Respondents challenged not only the rule itself but also its practical effect which was derived from the Clean Air Act (“CAA” or “Act”). ((Id. at 1596; 42 U.S.C.A. § 7410 (West).)) The CAA included a Good Neighbor Provision which instructed the States to prohibit instate pollutants “from emitting any air pollutant in amounts which will contribute significantly” to downwind States. ((Id.)) The Transport Rule, as the EPA’s interpretation of the Good Neighbor Provision, thus allowed the EPA to determine when a state was in violation of the CAA. ((EME Homer at 1588.)) If a state was in violation of the CAA, Congress has delegated authority to the EPA to institute corrective regulation in the form of a Federal Implementation Plan (“FIP”). A FIP allows the EPA to delineate specific requirements which if not followed, could result in severe penalties for violation. ((42 U.S.C.A. §§ 7409,7410 (West) (delegating to the EPA authority to set the standards); 40 C.F.R. §§ 50.1-50.18 (creating specific regulatory standards for each pollutant).)) The major issue the Respondents had with the EPA’s implementation of FIPs for violating the Good Neighbor Provision was the timing – the EPA read the Good Neighbor Provision as not requiring a corrective grace period for FIP implementation. ((EME Homer at 1599.)) Thus, should a State be in violation of the EPAs Transport Rule, the EPA had the authority to immediately institute its own requirements for correction, without giving the states notice or time to institute corrective action themselves. Broadly, the Court in EME Homer sought to specifically outline the EPA’s authoritative limits as outlined by the CAA. The Court dealt with several issues including:
1. Procedurally, whether the claim by the Respondents is untimely?
2. On the merits, whether the EPA may implement a FIP without giving a two year corrective period pursuant to the Good Neighbor Provision?
3. Also on the merits, whether the Transport Rule is a valid exercise of the Agency’s authority to regulate?((Id.))
The Court first focused on the issue of timing in its determination of whether the EPA’s authority to issue a FIP was absolute. The Court heavily relied on the plain language of the CAA in finding that the EPA has the ability and statutory duty to issue a FIP “any time” within two years. ((Id.; See also 42 U.S.C.A. § 7410 (West).))
The Court then proceeded to affirm the EPA’s Transport Rule. ((Id.)) The Court heavily relied on the 1984 Supreme Court decision in Chevron((Id. at 1603; See generally Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).)), a seminal case on agency law which allows court to give extreme deference to an agency’s interpretation of statutory language. Simply, the CAA was written by Congress, and Congress delegated to the EPA the authority to address the complicated problem of multiple source pollution. The Chevron case again allows for extreme deference to an agency’s reasonable construction absent specific statutory instruction.
Justice Scalia joined by Justice Thomas, in a lengthy dissent, claimed the EPA violated their authority in both creating the Transport Rule and in implementing it. While the majority relied on the CAA to find the EPA’s authority to enact the Transport Rule, Scalia claimed the Act’s plain language and historical use of the word “significantly” could not be read to grant the EPA such broad authority.((Id.))
The Court in EPA v. EME finally put an end to the long history of the Agency’s attempt at regulating interstate pollution with a hard-line rule delineating the limits of the EPA’s authority. In doing so they relied heavily on the seminal case on agency law – Chevron. ((Chevron, 467 U.S. 837, 843-44 (1984).)) The Court overruled multiple lower court decisions, thereby allowing the EPA’s current formulation of the transport rule to stand.
The Court did a lot by adopting the EPA’s newest mechanism for regulating interstate pollution. For one, it settled decade’s worth of uncertainty surrounding the power of the EPA – and it ruled heavily in the EPA’s favor. As Justice Scalia notes in dissent, the Court gave the EPA the power to both craft the law and implement it. ((EPA v. EME, 134 S. Ct. at 1610 (Scalia, disagreeing with majority’s decision in both respects).))This is not insignificant, and, from my point of view well rationalized, relying on the plain text of the CAA which gives the EPA the power to craft law filling any ambiguities particularly in the area of Interstate Pollution Regulation.
Scalia on the other hand, disagrees in totality with that analysis and claims that the majority in fact refused to follow the plain text of the CAA:
“Today, the majority approves that undemocratic revision of the Clean Air Act. The Agency came forward with a textual justification for its action, relying on a farfetched meaning of the word “significantly” in the statutory text. That justification is so feeble that today’s majority does not even recite it, much less defend it. The majority reaches its result (“Look Ma, no hands!”) without benefit of text, claiming to have identified a remarkable “gap” in the statute, which it proceeds to fill (contrary to the plain logic of the statute) with cost-benefit analysis—and then, with no pretended textual justification at all, simply extends cost-benefit analysis beyond the scope of the alleged gap.”((Id.))
Thus, in the end, the majority and the dissent turn on the meaning of the word significantly. The majority interprets the EPA’s actions in response to this word as being reasonable and further yet, mandated by the plain meaning of the CAA. Whereas, on the other hand, Scalia notes that “[i]t would be extraordinary for Congress, by use of the single word “significantly,” to transmogrify a statute that assigns responsibility on the basis of amounts of pollutants emitted into a statute authorizing EPA to reduce interstate pollution in the manner that it believes most efficient.” ((Id.)) The whole basis of EPA power turns on this word. According to the CAA, the states must create plans that:
(D) contain adequate provisions–
(i) prohibiting, consistent with the provisions of this subchapter, any source or other type of emissions activity within the State from emitting any air pollutant in amounts which will–
(I) contribute significantly to nonattainment in, or interfere with maintenance by, any other State with respect to any such national primary or secondary ambient air quality standard, or
(II) interfere with measures required to be included in the applicable implementation plan for any other State under part C of this subchapter to prevent significant deterioration of air quality or to protect visibility[ . . . ]
Again, Scalia notes that the statute has ambiguity as to “how much” pollution would equal nonattainment, however he claims that does not mean “whether they have achieved” attainment. ((42 U.S.C.A. § 7410 (West) (emphasis added).)) Thus, his argument is that the EPA has no power to correct ambiguity with respect to setting arbitrary regulatory laws. ((EPA v. EME, 134 S. Ct. at 1610.))
With this I must disagree. The above statutory language is certainly ambiguous with regard to both what the NAAQS standard of nonattainment should be and also with how to correct that nonattainment by regulation. Simply – Congress did not provide a mechanism or protocol for attainment. Where there is silence there is necessary ambiguity since the Agency has no way to act. Interpretation of statutes are necessarily pragmatic since it is people they affect and if the people do not know what the law is (if it is ambiguous), there are proper avenues to correct that ambiguity. With respect to the CAA and Environmental Protection, Congress has explicitly granted that power of correction to the EPA. To derive power from its ambiguity of the word “significantly” alone would be, as Scalia says, a transmogrification of the statute, however he fails to take the next logical step and question further – what does ambiguity really mean. He would leave it at an issue of semantics, when in reality, ambiguity is a really problem that requires pragmatic correction.
What this becomes is a necessary plea to the cooperative federalism on which this country is based. In consideration of the Circuits Court’s decision in EPA, one author remarked:
The D.C. Circuit’s decision in EME Homer City bolsters the states’ rights in environmental regulation. Although the court correctly reasoned that Congress intended the good neighbor provision of the Clean Air Act to operate within a cooperative federalism framework, it gave an overly strict interpretation of the interplay between the states and the Federal Government. The court should not construct such a narrow interpretation of what the Good Neighbor provision permits the EPA to initiate through the Clean Air Act.((Matt Jones, Eme Homer City Generation, L.P. v. E.P.A.: Restraining the Federal Government’s Leadership Role in Stopping Interstate Air Pollution, 9 Okla. J. L. & Tech. 63 (2013).))
There is an important framework of federalism, but what the dissent misses is that there still needs to be an “interplay” and mechanisms by which interpretation does not halt progress.
It seems that whenever this issue comes up, commentators are quick to make a very direct suggestion: let Congress regulate it directly. On the surface this seems like a fine and common sense based decision. ((Harry Moren, The Difficulty of Fencing in Interstate Emissions: EPA’s Clean Air Interstate Rule Fails to Make Good Neighbors, 36 Ecology L.Q. 525, 527 (2009).)) The difficulty with delegating this power to the EPA, as it did in the CAA, is that the EPA is just yet another step removed from the people. Those that fall under whatever regulatory system the EPA derives have difficulty succumbing to a mere government industry when they are faced with millions of dollars of reformations in order to meet their standards. On the other hand, Congress has the authority and the responsibility to make those broad decisions. They can identify a problem such as interstate pollution and take affirmative steps to correct it as they do with so many other sectors of our daily life. Whenever Congress removes the standard-making responsibility to an agency for whom the people do not vote, those people naturally feel a threat to their right to representation.
Further, the budget of the EPA is congressionally determined. Congress has the fiscal capabilities to mandate complicated study after study, as well as the ability to draft proposal after proposal. They are perhaps in the best position to consider the issues on behalf of their constituents and then consider all of the facts before them in a much more objective manner. It seems natural, that on an issue as complicated and delicate as interstate air pollution, especially following decades of debate and court decisions, that the time is right for Congress to exercise its power and duty to amend the Good Neighbor Provision of the CAA to create a interstate regulatory mechanism of their own. What that amendment should look like, or how Congress should fairly regulate interstate air pollution, seems to me more of an environmental statistics problem, than a legal one.
“The NAAQS are designed primarily to protect human health and the environment. The goal is not to use the most cost-effective solution but rather the most cost-effective solution that provides these protections.” ((Moren, supra 549.)) It seems that what the Court’s decision in EPA v EME reflects is the need to have a definite standard whereby the EPA could then create and enforce regulations. Further, this issue is very much time sensitive. The Court and the EPA need to have a starting point and that is exactly what this opinion provides. It acknowledges the growing problem – not of abuse per se – but of abuse in a larger sense: abuse of the environment in general. If the Court did not decide as it did, then the interstate problem would persist and this is a problem in which we as humans are reaching a point of no return on.