The U.S. Supreme Court decided Monday to take a case that has pitted Texas against the Obama administration over a federal rule aimed at reducing air pollution that crosses state borders.
The decision comes 10 months after a split U.S. Court of Appeals for the District of Columbia Circuit ruled that the Environmental Protection Agency overstepped its authority with the new regulation, which was one of the hallmarks of the administration’s recent efforts to improve air quality.
In seeking high-court review, U.S. Solicitor General Donald Verrilli argued that the appeals court’s decision “hobbles the agency … where the need for a strong federal role is most critical.”
The justices accepted the EPA’s appeal of the lower court’s opinion and will hear the case in the term that begins in October.
Led by Texas, 14 states and several power companies challenged the legality of the Cross-State Air Pollution Rule, which imposes caps on nitrogen oxide and sulfur dioxide from coal-fired power plants in eastern states. Texas, for one, feared that some utilities would shutter plants to comply with the rule, threatening the state’s ability to keep the lights on.
The EPA has said the rule is necessary to reduce lung-damaging pollution that causes thousands of premature deaths and respiratory illnesses each year around the power plants and in downwind states.
To comply with the rule, power companies would install smokestack scrubbers and other new pollution controls. They also could participate in a 28-state cap-and-trade system program that sets a ceiling on emissions and allows industries to trade credits or allowances to meet the cap.
Some operators of coal-fired power plants had said the rule would be manageable. Princeton, N.J.-based NRG Energy, the second-largest power generator in Texas, had said it would comply by increasing the efficiency of its scrubbers and using more low-sulfur coal.
The appeals court, however, said the EPA had overstepped in requiring Texas and other states to reduce emissions by more than their contributions to the pollution problems of downwind neighbors.