Clean Air Act Litigation to Stay Hot in 2013

"I would expect some action on ozone, some forward progress to happen on ozone, in the coming year," says Christopher Ahlers, a fellow at the Vermont Law School's Environmental and Natural Resources Law Clinic who is teaching an elective course on air pollution law and policy this semester.

• By Jerry Laws
• Jan 21, 2013

There's a good chance EPA will make progress this year on an ozone rule similar to the proposal that was blocked in 2011, says Christopher Ahlers, a fellow at the Vermont Law School's Environmental and Natural Resources Law Clinic who is teaching an elective course on air pollution law and policy this semester. Departing EPA Administrator Lisa Jackson submitted a proposed ozone rule that year to the Office of Management and Budget (OMB), only to have it bounced back by Cass Sunstein, who then was administrator of the Office of Information and Regulatory Affairs, a gatekeeper OMB office that reviews proposed federal rules.

The decision angered environmental groups. Sunstein's letter said it was not an appropriate time to be enacting such a costly rule, and also Jackson's rule was premature because the agency would have had to review the existing 2008 NAAQS regulation in 2013 anyway. Now that about two years have passed, "I would expect some action on ozone, some forward progress to happen on ozone, in the coming year," Ahlers said.

Ahlers wrote articles about two important Clean Air Act cases that are included in the law school's 2013 Top Ten Watchlist of key environmental law cases. The cases are Coalition for Responsible Regulation v. E.P.A. and EME Homer City Generation, L.P. v. E.P.A., both decided by the U.S. Court of Appeals for the District of Columbia in 2012. EPA won the Coalition case in June 2012, when a panel of the court upheld its author under the act to address climate change. The industry groups that had lost the case sought a rehearing before the D.C. Circuit, which denied that request Dec. 12, 2012, Ahlers said.

EPA lost the EME Homer City Generation case, however, when the appellate court on Aug. 21, 2012, invalidated its Cross-State Air Pollution Rule. This case challenged EPA's Cross-State Air Pollution Rule, which was an attempt by the agency to address interstate pollution.

"These cases in the D.C. Circuit are very hot," said Ahlers. "If you look at the first few pages [of the decisions], you can see all of the companies and governmental bodies that are part of these cases. A number of states are intervening and getting involved and submitting papers. There are a lot of things going on all over the country."

Ahlers said two of the more conservative members of the D.C. Circuit court wrote opinions in Coalition saying the question raised in the case is really a political decision and thus is a matter Congress should decide. The case still could be accepted and heard by the U.S. Supreme Court. "My anticipation is if it does continue to be litigated, they need to focus on the arguments that were raised by these conservative judges," he said. "Courts are careful not to go outside the scope of their powers, and they don't want to get involved in political disputes."

Asked how aggressively he expects to see EPA address the climate change, now that its authority to do so has been upheld judicially, he answered, "EPA is kind of in a precarious situation. It's in the unenviable position of always getting sued."