Supreme Court examines cross-state air pollution

As the U.S. Supreme Court Wednesday (Feb. 21) held oral arguments on the legality of the Environmental Protection Agency’s “good neighbor” policy to limit upwind states from polluting downwind states, two legal constructs dominated the discussion: “severability” and the court’s “emergency docket.” The case is “Ohio et al v. EPA” brought by several states and joined by Kinder Morgan natural gas firm, the American Forest & Paper Association, and U.S. Steel.

Severability refers to provisions that allow the remainder of legislation to remain in effect if parts of its other provisions are dropped or found illegal. Emergency applications are cases that petitioners bring to the high court, bypassing lower court action.

The case before the court involves an environmental issue dating back nearly 20 years. What action can EPA take when pollution from an upwind state – Ohio, for example – which has an EPA approved “state implementation plan” to reduce ozone-causing oxides of nitrogen from power plants or steel mills nevertheless puts a downwind state – such as Connecticut – out of compliance?

The George W. Bush, Obama, and Biden administrations have all wrestled with the difficult question, as has the Supreme Court. According to a Harvard Law history, the cross-state ozone issue has been litigated some 90 times in the federal courts since first EPA first attempted regulations in 2005.

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