Supreme Court upholds rule limiting coal pollution

WASHINGTON — In a major victory for the Obama administration, the Supreme Court on Tuesday upheld the authority of the Environmental Protection Agency to regulate the smog from coal plants that drifts across state lines from 27 Midwestern and Appalachian states to the East Coast.

The 6-2 ruling bolsters the centerpiece of President Obama’s environmental agenda: a series of new regulations aimed at cutting pollution from coal-fired power plants. Republicans and the coal industry have criticized the regulations, which use the Clean Air Act as their legal authority, as a “war on coal.” The industry has waged an aggressive legal battle to undo the rules.

Legal experts said the decision, written by Justice Ruth Bader Ginsburg, signaled that the Obama administration’s efforts to use the Clean Air Act to fight global warming could withstand legal challenges.


In June, the EPA is expected to propose a sweeping new Clean Air Act regulation to cut emissions of carbon dioxide, the heat-trapping greenhouse gas that scientists say is the chief cause of climate change. Coal-burning power plants are the biggest source of greenhouse gas emissions in the United States.

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“It’s a big win for the EPA, and not just because it has to do with this rule,” said Jody Freeman, director of the environmental law program at Harvard. “It’s the fact that it’s setting the stage and creating momentum for what’s to come.”

If the high court had decided against the administration, Freeman said, “It would have been a shot across the bow to the EPA as it takes the next steps” toward releasing the climate change regulation.

Tuesday’s decision is only the latest blow to coal. Two weeks ago, the US Court of Appeals for the District of Columbia Circuit upheld another major EPA Clean Air Act rule that would cut the levels of mercury released by coal plants.

“Today’s Supreme Court decision is a resounding victory for public health and a key component of EPA’s efforts to make sure all Americans have clean air to breathe,” Gina McCarthy, the EPA administrator, said in a statement. She added that “the court’s finding also underscores the importance of basing the agency’s efforts on strong legal foundations and sound science.”


The regulation covering cross-state air pollution, also known as the “good neighbor” rule, has pitted Rust Belt and Appalachian states like Ohio, Michigan, and Kentucky against East Coast states like New York and Connecticut.

In its arguments before the court, the EPA said the rules were necessary to protect the health and the environment of downwind states. East Coast states in particular are vulnerable to pollution carried by the continent’s prevailing west-to-east winds. The soot and smog produced by coal-burning plants are linked to asthma, lung disease and premature death, as well as acid rain.

In her decision, Ginsburg noted that in reining in interstate pollution, regulators must account for the vagaries of the wind.

“Some pollutants stay within upwind states’ borders, the wind carries others to downwind states, and some subset of that group drifts to states without air quality problems,” she wrote, adding a quotation from the Bible’s Book of John: “The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth.”

In a dissent, Justice Antonin Scalia, joined by Justice Clarence Thomas, said that the regulation was unwieldy and suggested that it was Marxist. As written, the regulation will require upwind polluting states to cut pollution in relation to the amounts of pollution each state produces, but also as a proportion of how affordably a state can make the cuts. In other words, states that are able to more cost-effectively reduce pollution will be required to cut more of it.


Justice Samuel A. Alito Jr. recused himself from the case.

The utilities and 15 states opposed to the regulations stated that the rules, as written by the Obama administration, gave the EPA too much authority and placed an unfair burden on the polluting states.

The decision will force coal-plant owners to install costly “scrubber” technology to limit the smog-forming chemicals emitted from smokestacks. Many owners have said the regulation would be so expensive to carry out that they expect to shut down their oldest and dirtiest electricity-generating plants.

Republicans in Congress denounced the decision.

“This is just the latest blow to jobs and affordable energy,” Representative Fred Upton, a Republican from Michigan who is chairman of the House Energy and Commerce Committee, and Representative Edward Whitfield, Republican of Kentucky, said in a statement. Both are from states that rely heavily on cheap electricity from coal-fired plants.

They added: “The administration’s overreaching regulation will drive up energy costs and threaten jobs and electric reliability. We cannot allow EPA’s aggressive regulatory expansion to go unchecked. We will continue our oversight of the agency and our efforts to protect American families and workers from EPA’s onslaught of costly rules.”

In 2011, the Obama administration issued the “good neighbor” rule, which was to apply to 27 states east of Nebraska — half of the country — but the US Court of Appeals in Washington struck it down, ruling that the EPA had not followed the Clean Air Act when it calculated how to assign responsibility for cross-state air pollution. The Supreme Court’s ruling Tuesday overturned that decision.

East Coast governors have long criticized the Appalachian and Rust Belt states for their more lenient rules on air pollution, saying their state economies profit from cheap energy while smog and soot from coal plants, factories and vehicle tailpipes are sent eastward on the prevailing winds.