Policy Integrity director, Richard Revesz, legal director, Jason Schwartz, and legal fellow Denise Grab were at the Supreme Court today to hear oral arguments in the case against EPA’s Cross-State Air Pollution regulation. This challenge to EPA’s rule reaches the nation’s highest court after the U.S. Court of Appeals for the D.C. Circuit decided against EPA. That decision set aside three decades-worth of consistent agency interpretation of the Clean Air Act by six administrations of both political parties, to disallow EPA from taking into account the costs of pollution reductions and using market mechanisms to allocate the pollution control burden between upwind and downwind states.
Our amicus brief on the case argues that in place of an established, relatively unchallenged understanding of EPA authority, the lower court substituted its preferred policy for that of the agency. In doing so, it acted inconsistently with core principles of American administrative law.
We were the first to raise this argument that EPA has had a consistent interpretation allowing it to consider costs for decades, which predated the 1990 amendments to the Clean Air Act. Our amicus was cited in several reply briefs, and our argument was raised as an important point by Deputy Solicitor General Malcolm Stewart. It enjoyed the sustained attention of the Justices.
We are hopeful that the Supreme Court will reverse the D.C. Circuit’s decision to overturn EPA’s use of free-market principles in this rule. The consequences of the Supreme Court allowing the decision to stand would be either the more expensive, more cumbersome command-and-control regulatory action the D.C. Circuit prescribed, or a stalling out of the rule altogether. Both scenarios will result in dirtier air and leave 34,000 lives at risk each year. We look forward to seeing the court’s decision on the case.
For more background on the CSAPR case, click here.