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April 30, 2014
Supreme Court Upholds EPA Ruling on Coal Pollution
    by Robert Kropp

The 6-2 decision upholds the Agency's authority to regulate pollution from coal-fired power plants, and is the second court decision in two weeks that supports environmental regulations.

A solid majority of Supreme Court justices agreed this week that the Environmental Protection Agency (EPA) has the authority under the Clean Air Act to regulate cross-state pollution from coal-fired power plants.

By a 6-2 vote, the Court decided in favor of the Agency in EPA v. Homer, confirming its authority to enact the Cross-State Air Pollution Rule. Coal-burning power plants account for 98% of sulfur dioxide and 92% of nitrogen oxide emissions, and EPA estimated that enacting the rule will result in $120 to $280 billion in annual health and environmental benefits.

“Today’s Supreme Court decision is a resounding victory for public health and a key component of EPA’s efforts to make sure all Americans have clean air to breathe,” EPA Administrator Gina McCarthy stated. “The court’s finding also underscores the importance of basing the agency’s efforts on strong legal foundations and sound science.”

The Court's decision reversed a 2012 determination by the US Court of Appeals in Washington, which found that the rule imposed “massive emissions reduction requirements on upwind states without regard to the limits imposed by the statutory text” of the Clean Air Act.

“Today’s Supreme Court decision means that millions of Americans can breathe easier,” said Fred Krupp, president of the Environmental Defense Fund (EDF), which was one of the parties defending the rule. “Power plant pollution creates serious health risks for millions of Americans, especially children and the elderly. The Supreme Court’s decision means that our nation can take the necessary steps to ensure healthier and longer lives for the 240 million Americans at risk from power plant smokestack pollution near and far.”

The New York Times reported that the Supreme Court decision was the third in recent weeks that supported EPA's authority to act on air pollution. An appeals court recently found in favor of the Mercury and Air Toxics Rule for Power Plants, the first in the nation's history to regulate emissions of mercury. The rule requires power plants that have not done so already to install pollution control equipment.

“Also on Tuesday,” The Times reported, “a Federal District Court ordered the EPA to propose by Dec. 1 a new nationwide regulation to rein in smog pollution from coal-fired power plants and other major polluters. This rule would come on top of the regulation covering cross-state air pollution.”

In an ironic aside, justice Antonin Scalia revived a bit of McCarthyism by branding the EPA's action under the Clean Air Act to be equivalent to Marxism. The majority decision, Scalia wrote in his dissent, “feeds the uncontrolled growth of the administrative state at the expense of government by the people.”

According to Raw Story, Scalia committed what amounted to a major error in the reasoning for his dissent. “The arch conservative jurist wrote that the majority’s decision runs counter to a unanimous ruling by the court in 2001, mistakenly claiming that the court struck down the agency’s ability to override cost considerations when setting regulations,” David Ferguson of Raw Story wrote.

Scalia's dissent in this week's case was, in fact, factually inaccurate in its reference to the 2001 case. Furthermore, in the earlier case, he wrote the unanimous court decision that he misrepresented this week.


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