Environmental Protection Agency v. EME Homer City Generation; American Lung Association v. EME Homer City Generation

Case Updates

In 2014, the D.C. Circuit invalidated the EPA’s Cross-State Air Pollution Rule (CSAPR). The Supreme Court later vacated that judgment, finding it improper to invalidate the entire rule but leaving the door open to as-applied challenges brought by individual states. The D.C. Circuit has now sided with 13 states in their challenges to their respective obligations under the rule. The case is remanded without vacatur to the EPA for it to reconsider the 2014 emissions budgets that have been deemed invalid.

The U.S. Chamber asked the U.S. Supreme Court to uphold a decision by the D.C. Circuit to invalide the EPA’s Cross-State Air Pollution Rule - also known as the Transport Rule - a sweeping regulation that imposes expensive and unlawful regulatory burdens on energy producers in “upwind states.” The Chamber's amicus brief argues that the EPA’s new air quality regulations exceed the agency’s authority under the Clean Air Act. The Act’s “good-neighbor” provision requires state implementation plans to address emissions from upwind States that “contribute significantly” to “nonattainment” of air quality standards in downwind States. In the Transport Rule, however, EPA disregarded the express limits on its authority under that provision, imposing air quality controls to reduce emissions regardless of whether the emissions contribute to nonattainment and regardless of whether attainment could be achieved with less extensive controls. Rather than adhere to its statutory mandate, EPA effectively treated the Act as a license to regulate interstate air pollution to whatever extent it found to be in the public interest. That leveraging of the good-neighbor provision into a license for general regulation of interstate emissions will have significant adverse impacts on the economy.

The Chamber’s amicus brief explains to the Court that the EPA’s authority over emissions from “upwind states” is limited to the amounts that those emissions will contribute to the inability of “downwind states” to “attain” or reach the federally established emissions standards. The Chamber's amicus brief lays out that the text of the Clean Air Act unambiguously limits EPA’s authority, and the history of the Clean Air Act reaffirms the “good neighbor” provision's narrow grant of authority to the EPA. The brief also rebuts the EPA’s argument that it would just be “too complicated” to follow the text of the statute.

Jeffrey A. Lamken, Robert K. Kry, and Hassan A. Shah of MoloLamken LLP represented the U.S. Chamber as co-counsel to the National Chamber Litigation Center, Inc.