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States in the Midwest and South whose polluted air affects those in the Northeast and Mid-Atlantic may have to deal with a federally imposed solution, a slim majority of Supreme Court justices appeared to indicate Tuesday.

While the court was divided over the method and timing behind the Environmental Protection Agency's rule on cross-state air pollution, more support was voiced for federal authority than the demands of "upwind" states and industries.

At issue is whether the EPA acted before states could come up with their own emissions control plans, and whether its emphasis on cost controls would cause some states to do more and others less, regardless of their share of the offending pollution.

Forcing the EPA to define each state's "significant contribution" to the problem before devising a regional solution would be impossible, Justice Stephen Breyer said, because "it depends upon where the wind blows, and that changes all the time."

Using cost-effectiveness to apportion the burden makes sense, Justice Elena Kagan said, because "the states that are required to do more are the states that haven't done much already." By contrast, she said, trying to divide the burden among states based on their exact shares of the pollution would either be impossible or "complicated and dumb."

With Justice Samuel Alito recused from the case for unspecified reasons, the court's other four conservatives would need to rule against the EPA to uphold an appeals court's ruling that struck down the so-called "good neighbor" rule. Justice Antonin Scalia clearly denounced the EPA rule, but others - notably Justice Anthony Kennedy - appeared open to both sides.

The problem of air pollution that wafts from one state to another has troubled the court for more than a century. Congress devised the Clean Air Act a half century ago and has amended it several times since, but still the implementation falls either to the states or the regulatory agency.

Under the EPA's rule, which has yet to go into effect, some 28 upwind states would have to slash ozone and fine particle emissions by varying amounts because of their impact on downwind states.

The case focuses on air currents miles overhead but has down-to-earth consequences. The EPA blames exposure to ozone and fine particles in the air for one in 20 deaths in the United States, 90,000 hospital admissions, 200,000 non-fatal heart attacks and 2.5 million cases of aggravated asthma. More at http://www.freep.com/usatoday/article/3954397]

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East Coast Sick of Midwest’s Cross-State Air Pollution

The governors of states like Delaware, Connecticut and New York petitioned the U.S. Environmental Protection Agency (EPA) Monday in hopes that it will better regulate nine Rust Belt and Appalachian states whose coal plant emissions flow across state boundaries.

The governors say that the Rust Belt and Appalachian states—-Illinois, Indiana, Kentucky, Michigan, North Carolina, Ohio, Tennessee, Virginia and West Virginia—-contributed to their own violations of National Ambient Air Quality Standards. The East Coast states were placed in the Ozone Transport Region (OTR) more than a decade ago and, as a result, face stricter standards.

The East Coast governors believe the Midwestern and Appalachian states should join them in the OTR. The Supreme Court is expected to hear argument today.

“I care about this because it’s put Connecticut at an economic disadvantage,” Connecticut Gov. Dannel P. Malloy told the New York Times. “We’re paying a lot of money to remove these compounds from the air. That money is reflected in higher energy costs. We’re more than willing to pay that, but the states we’re petitioning should have to follow the same rules.”

The current OTR members are expected to argue that upwind states need help containing the particles responsible for 98 percent of the ozone air pollution in their states, according to The Christian Science Monitor.

“They’re getting away with murder, only it’s in our state not theirs,” Malloy said, adding that the life expectancy of residents with heart disease and asthma has been decreased because of the pollution.

The petition and arguments come just a day before the Supreme Court will hear arguments related to the EPA’s Cross-State Air Pollution Rule (CSAPR) or “good neighbor” law, which would force 27 states to install pollution control technology or shut down dirty coal power plants. The EPA estimates that the CSAPR would prevent up to 34,000 premature deaths, 15,000 nonfatal heart attacks, 19,000 cases of acute bronchitis, 400,000 cases of aggravated asthma and 1.8 million sick days per year. Indiana, Kentucky and Ohio would be under extra pressure to spend the money to make such preventions possible. The three states respectively get 83, 93 and 78 percent of their electricity from burning coal. http://www.ct.gov/deep/lib/deep/air/176a/Petition_2013Dec9.pdf

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