Though a stalemate on the federal budget endures in Congress, and the federal government continues to be partially shut down, the Supreme Court began its new term on Oct. 7 by announcing that it had accepted two cases seeking a review of the invalidated Cross State Air Pollution Rule (CSAPR).
The two CSAPR cases, EPA, et al. v. EME Homer City, et al., and American Lung Association, et al v. EME Homer City, et. al., have been consolidated. Arguments for the case have been set for Dec. 10, 2013. In both cases, the Environmental Protection Agency (EPA) has asked the court to review a decision by the D.C. Circuit that vacated the air pollution transport rule.
The EPA and other parties to include the American Lung Association in their petitions for certiorari argued that the D.C. Circuit exceeded its jurisdiction and that the various challenges to CSAPR are foreclosed by prior EPA actions, including the rule-making proceedings and EPA orders finding substantial noncompliance by the relevant states. The government also argues that the federal appeals court’s decision, “if left undisturbed, will gravely undermine the EPA’s enforcement of the Clean Air Act.”
In its Oct. 7 list, the Supreme Court denied hearing in another key power generation case, however. Luminant Generation Co, et al. v. EPA is an appeal by Texas power company Luminant—backed by the Utility Air Regulatory Group (UARG), an unincorporated association of individual electric utility and national industry trade associations—of a June 2013 decision by the 5th Circuit. The company said in documents attached to the case that the federal appellate court “wrongly decided a question of national importance” when it ruled that the EPA could disapprove a Texas state implementation plan (SIP) without having to find any conflict between the SIP and “an applicable requirement” identified in the Clean Air Act. “The action of the Fifth Circuit, allowing EPA to disapprove provisions of the Texas SIP, is being relied upon by the Agency in its proposal to disapprove similar regulatory provisions contained in the SIPs of some 70 percent of the rest of the states,” the UARG said.
The Supreme Court on Oct. 7 did not accept or deny cases involving EPA greenhouse gas regulations.
—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)