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Publication Date

7-2013

Document Type

Casenote

Abstract

Air pollution emissions pay little deference to state borders: emissions generated in upwind State A may travel to affect the air quality of downwind State B. As a result of this inevitability and its unfair implications for the downwind state, under the Clean Air Act, upwind states have a "good neighbor" responsibility. Through the good neighbor provision, the upwind state may initially develop a State Implementation Plan (SIP) to determine its own mechanism for restricting emissions that contribute to a downwind state's nonattainment of federal regulations. In August of 2011, however, the Environmental Protection Agency (EPA) took matters into its own hands to enforce the good neighbor provision by establishing the 'Transport Rule" or "Cross State Air Pollution Rule," targeting emissions from coal and natural gas power plants in twenty-eight upwind states, including Georgia. In EME Homer City Generation, L.P v. Environmental Protection Agency, the United States Court of Appeals for the District of Columbia held that the Transport Rule exceeded federal government authority in two ways: (1) it required upwind states to reduce their emissions "by more than their own significant contributions to a downwind State's nonattainment"; and (2) it denied the states the initial opportunity to comply via SIPs by establishing the good neighbor responsibilities while simultaneously establishing Federal Implementation Plans (FIPs) to effectuate their goals. This holding throws a lasso around the runaway bull that is EPA. As a meaningful display of the separation of powers and judicial review, the court attempted to pay deference to federalism and congressional intent. Judge Kavanaugh wisely notes: "It is not our job to set environmental policy. Our limited but important role is to independently ensure that the agency stays within the boundaries Congress has set. EPA did not do so here."

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