The Supreme Court heard arguments on Tuesday in a knotty environmental case over how to hold states responsible for air pollution that drifts across their borders and causes harm in downwind states.
If there was consensus among the justices, it concerned only the complexity and difficulty of the issues before them. ...
Still, the questioning suggested that there may well be five votes to sustain the Environmental Protection Agency regulations at issue. “It’s certainly hard,” Chief Justice John G. Roberts Jr. said of the task of allocating responsibility, “but it is what the statute says, and it seems to me that if E.P.A. had taken a different view, it would have been contrary to the statute.” ...
The agency’s approach, which involves a trading system for pollution credits, was struck down last year in a 2-to-1 ruling from the United States Court of Appeals for the District of Columbia Circuit. The appeals court said the agency had exceeded its authority under the Clean Air Act in the way it apportioned the cleanup work among 28 upwind states.
The air in those states, mostly in the Midwest and the South, may meet regulatory standards within their borders even as pollutants from their power plants and refineries drift across state lines, preventing neighboring states from meeting their legal obligations. The affected states are largely in the Northeast and the mid-Atlantic.
The regulation at issue, the Cross-State Air Pollution Rule, sometimes called the transport rule, did not apportion reductions by the amount of pollution contributed by each upwind state. Instead, the agency sought to encourage remedial action where it was cheapest.
The appeals court said that this approach violated the Clean Air Act’s “good neighbor” provision by requiring upwind states “to reduce their emissions by more than their own significant contribution” to downwind pollution.
Much of Tuesday’s arguments concerned whether the agency could take cost into account or whether, as Justice Kagan put it, “Congress has demanded that the regulation occur in a fundamentally silly way.”
Justice Antonin Scalia said that cost-based regulations might be wise policy, “but it’s certainly not the statute that Congress wrote.”