Environmental Protection Agency v. EME Homer City Generation - Opinion Announcement - April 29, 2014 (Part 2)

Environmental Protection Agency v. EME Homer City Generation

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Audio Transcription for Opinion Announcement - April 29, 2014 (Part 1) in Environmental Protection Agency v. EME Homer City Generation
Audio Transcription for Oral Argument - December 10, 2013 in Environmental Protection Agency v. EME Homer City Generation

Audio Transcription for Opinion Announcement - April 29, 2014 (Part 2) in Environmental Protection Agency v. EME Homer City Generation

Antonin Scalia:

As you have heard I dissent in this case along with Justice Thomas.

These are not cases of earth shaking importance.

The reason I think worth explaining why they said is that the cases implicate the major problem that many citizens have with the Federal Government these days; that they find themselves governed not so much by their elected representatives as by an unelected bureaucracy operating under vague statutory standards.

In the “Good Neighbor” provision however, Congress did it right.

It established a clear and unmistakable standard for EPA's enforcement of state's interstate pollution obligations.

Today's opinion is a textbook example of how a court established to assure government by the people, can instead assure government by the bureaucracy.

It is a textbook example because it is so easy to understand what is going on here and so easy to understand why that was against the law.

What was going on here was simply this, Congress enacted a law requiring each state to eliminate that amount of its contribution to interstate pollution which causes a downwind state to be in violation of the Clean Air Act.

EPA thought that law quite stupid which indeed it probably was.

It is much easier on the economy thought EPA to make each state eliminate those contributions to downwind pollution that are inexpensive to eliminate.

Only the difficult to eliminate contributions would remain and EPA acted accordingly.

The reason why that was unlawful is also easy to understand.

All you have to know are two readily understandable things.

Number one what the statute says EPA must do, and number two, what EPA is doing and this Court today approves.

What the statutes says EPA must do is disapprove state implementation plans, so-called SIPS, that fail to prohibit sources in the state from “emitting any air pollutant in amounts which will contribute significantly to nonattainment of EPA mandated pollution standards or interfere with maintenance of those standards by any other state."

What EPA is doing is disapproving SIPS that fail to require sources in the state to make those reductions of emissions affecting downwind states that are cost-effective without regard, without regard to the amount of downwind pollution for which the state is responsible.

How you may ask, did what is clearly and unquestionably an amount's based standard become a cost benefit standard?

That is what the dissent asks as well and it finds no plausible answer.

In the government's argument before this Court EPA gamely tried to device a textual excuse for what it has done.

It pointed to the word “significantly” in the statutory requirement that each upwind state must eliminate those amounts of pollutants that contribute significantly to the nonattainment of air quality standards in downwind states.

The word “significantly” the government said is ambiguous and one possible meaning looks to the difficulty of accomplishing a task that is you contribute more significantly if it would be very easy to eliminate your contribution.

That sole textual argument was so pathetic that the majority opinion does not even mention it, much less attempt to defend it.

The “Good Neighbor” provision asks whether the amounts of pollution emitted by an upward state contribute significantly, not whether the upwind state contributes significantly.

The provision addresses the physical effects of physical causes and it is only the magnitude of that casual relationship that admits of some vagueness.

In other words, although the statute is ambiguous about how much of a contribution to downwind pollution counts is significant, it is not at all ambiguous about whether factors unrelated to amounts of pollutants can be part of the analysis, they cannot be.

To make matters worse the word significantly appears in only one of the two conditions for upwind state liability, namely amounts that contribute significantly to non-attainment or, the statute goes on, interfere with maintenance, the later portion contains no weasel word “significantly” and the government never provided any textual argument to convert the latter condition into cost benefit analysis.

Having abandoned the government's feeble textual feint the majority is left with no textual basis, zero textual basis so its approval of EPA's “from each state according to its ability approach.”

Instead, the majority discovers an absolutely amazing gap in the text which it says, though I know not why, it is the responsibility of EPA to fill because you see although the Good Neighbor” provision says that each of upwind state is responsible for eliminating its own contribution to downwind pollution, it says nothing about how responsibility is to be apportioned among multiple upwind states that contribute to the same downwind area where the required reduction is less than the total of their contributions.

Excuse me, but is this a trick question that one might find in a quiz show, “if the textual criterion of responsibility is amounts of pollutants contributed, how should responsibility be assigned when states A, B and C each contribute 10 units to a downwind state's pollution but the required overall reduction in order to enable the downwind state to comply with the Clean Air Act, is only 21 units and not 30.”

As one of my grandchildren might say well duh, the answer is obviously 7.