Environmental Protection Agency v. EME Homer City Generation - Oral Argument - December 10, 2013

Environmental Protection Agency v. EME Homer City Generation

Media for Environmental Protection Agency v. EME Homer City Generation

Audio Transcription for Opinion Announcement - April 29, 2014 (Part 1) 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

Audio Transcription for Oral Argument - December 10, 2013 in Environmental Protection Agency v. EME Homer City Generation

John G. Roberts, Jr.:

We will hear argument first this morning in Case 12-1182, Environmental Protection Agency v. EME Homer City Generation and the consolidated case American Lung Association v. EME Homer City Generation.

Mr. Stewart.

Malcolm L. Stewart:

Mr. Chief Justice, and may it please the Court:

In promulgating the Transport Rule, EPA sought to protect the public health and to strike a fair balance between the competing interests of upwind and downwind States.

EPA's analysis proceeded in three basic steps.

First, EPA performed a screening analysis to determine which upwind States would be covered by the Transport Rule.

And in order to do that, EPA first identified the downwind receptors that were in a state of nonattainment or had maintenance difficulties, and then it determined which upwind States were linked to those receptors.

And in order to be linked to a downwind receptor, the upwind State had -- had to contribute 1 percent or more of the relevant National Air Quality -- Ambient Air Quality standard, or -- or NAAQS, to that downwind receptor.

And any State that didn't contribute at least 1 percent to any of the downwind -- any of the relevant downwind receptors was determined not to contribute significantly to nonattainment at that area.

Second, once the States that were to be covered by the Transport Rule had been identified, EPA set a State emissions budget for each State.

And to do that, it performed computer modeling to determine, in addition to whatever emission control efforts were already going on, what additional emission reductions could be achieved by implementation of control measures available at various cost thresholds; and the thresholds ultimately selected were for NAAQS, $500 per ton.

For SO2, the group 1 States were at a level of $2,300 per ton.

The group 2 States were 5 -- $500 per ton.

And the idea was let's see what emissions savings we can achieve if additional control measures are implemented up to those cost thresholds.

Antonin Scalia:

Of course, those -- those savings would -- would not be evenly distributed among the upwind States, right?

So some upwind States that are able to make those efficient changes will be carrying more than their burden of reducing the emissions that affect downwind States, right?

Malcolm L. Stewart:

Well, there -- there were two bases for distinguishing among the States.

The first -- in terms of the $500 per ton threshold for the group 2 States versus the $2,300 per ton threshold; the way in which States were divided into those categories is that the States that were linked to the downwind receptors that had the most severe pollution problems were treated as group 1 States, and they were required to make greater pollution control efforts because they had some responsibility for the most serious problems.

Now, I guess the point of your question would go to -- to the fact that even among States that were operating under constant cost control thresholds, a State that had already implemented cost measures up to that limit might have to do less in a sense, because it would have already taken the -- the steps that were required, at least as compared to an air quality only threshold.

Antonin Scalia:

Well, I don't mind a State doing less.

I think North Carolina said -- said that you can use those cost figures to do less, and that's not challenged here.

But what the application of the cost factor means is that some States that can more efficiently make the changes will be required to do more than merely account for their proportion of the downwind harm.

Isn't that true?

Malcolm L. Stewart:

Well--

Antonin Scalia:

Yes or no?

I mean, I think it's an easy yes or no answer.

Malcolm L. Stewart:

--I think it is -- no, I think it is the case that if you adopted an air quality only threshold, then it would be more likely to be the case that States that had already done a lot to control air pollution would have to take additional steps, even if it was done at a non-cost -- in a non-cost-effective way.

Antonin Scalia:

Have you answered my question?

Does -- does -- does the fact that you begin with what the statute says is each upwind State has to account for its -- its effect on the downwind States, but once having identified that effect, you -- you then say those upwind States that can make the reductions more efficiently have to make more reductions than they -- than their mere proportion of the harm requires.

Isn't that so?