On Tuesday, the US Supreme Court handed down a 6-2 decision in EPA v. EME Homer City Generation, upholding the Environmental Protection Agency’s Cross-State Air Pollution Rule, which prevents one state from sending excessive air pollution into another. The DC Circuit had previously struck down the rule, arguing that the EPA could only require states to be responsible for the proportion of pollution they produced—a proportion that is nearly impossible to determine accurately. However, the Supreme Court's ruling overturns the DC Circuit's decision in what is seen as a victory for the environmental agenda of President Obama's administration.
Justice Ruth Bader Ginsburg, writing for the majority, cited an article by Richard Revesz, dean emeritus and Lawrence King Professor of Law, in the opening paragraph of her opinion: “These cases concern the efforts of Congress and the Environmental Protection Agency (EPA or Agency) to cope with a complex problem: air pollution emitted in one State, but causing harm in other States. Left unregulated, the emitting or upwind State reaps the benefits of the economic activity causing the pollution without bearing all the costs. See Revesz, Federalism and Interstate Environmental Externalities, 144 U. Pa. L. Rev. 2341, 2343 (1996).”
Revesz’s 1996 University of Pennsylvania Law Review article, which argued that the federal government was ineffective in dealing with interstate environmental externalities, is available here.
Posted April 29, 2014