EPA v EME Homer City Generation (12-1182) American Lung Association v. EME Home City Generation (12-1183)

Docket No., 12-1182, 12-1183


The Clean Air Act, 42 U.S.C. 7401 et seq. (Act or CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. 7408, 7409. "[W]ithin 3 years" of "promulgation of a [NAAQS]," each State must adopt a state implementation plan (SIP) with "adequate provisions" that will, inter alia, "prohibit[]" pollution that will "contribute significantly" to other States' inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. 7410(a)(1), (2)(D)(i)(I). If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C 7410(k). After the EPA does so, it "shall promulgate a [f]ederal implementation plan" for that State within two years. 42 U.S.C. 7410(c)(1). 

The questions presented are as follows: 

1.Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief. 

2.Whether States are excused from adopting SIPs prohibiting emissions that "contribute significantly" to air pollution problems in other States until after the EPA has adopted a rule quantifying each State's interstate pollution obligations. 

3.Whether the EPA permissibly interpreted the statutory term "contribute significantly" so as to define each upwind State's "significant" interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State's physically proportionate responsibility for each downwind air quality problem.


The Clean Air Act's "Good Neighbor" provision requires that state implementation plans contain "adequate" provisions prohibiting emissions that will "contribute significantly" to another state's nonattainment of health-based air quality standards. 42 U.S.C. 7410(a)(2)(D)(i). A divided D.C. Circuit panel invalidated, as contrary to statute, a major EPA regulation, the Transport Rule, that gives effect to the provision and requires 27 states to reduce emissions that contribute to downwind states' inability to attain or maintain air quality standards. The questions presented are: 

(1) Whether the statutory challenges to EPA's methodology for defining upwind states' "significant contributions" were properly before the court, given the failure of anyone to raise these objections at all, let alone with the requisite "reasonable specificity," "during the period for public comment," 42 U.S.C. 7607(d)(7)(B); 

(2) Whether the court's imposition of its own detailed methodology for implementing the Good Neighbor provision violated foundational principles governing judicial review of administrative decision -making; 

(3) Whether an upwind state that is polluting a downwind state is free of any obligations under the Good Neighbor provision unless and until EPA has quantified the upwind state's contribution to downwind states' air pollution problems. 

Merit Briefs

Amicus Briefs