Some emissions of air pollutants affect air quality in the states where the pollutants are emitted. Some emissions of air pollutants travel across state boundaries and affect air quality in downward states."
Yes, they do, as we know to our sorrow in Pennsylvania. But after stating that simple truth at the beginning of his opinion issued Tuesday, Judge Brett Kavanaugh of the U.S. Court of Appeals in Washington, D.C., found his clarity in the complication of the law -- what he called the "complex regulatory challenge" facing the Environmental Protection Agency. The EPA -- and by extension, the Obama administration -- lost.
Judge Kavanaugh held that the EPA in regulating air pollution across state lines -- according to the "Cross State Air Pollution Rule" (or the Transport Rule) -- had exceeded its authority.
The rule, promulgated last summer, required reductions in emissions of some of the key ingredients of smog and soot pollution from power plants in 28 states. Fifteen states, together with industry groups, challenged the rule; nine states plus the District of Columbia supported the rule. Pennsylvania didn't take sides.
The court ruling, decided by a 2-1 majority, was as surprising as it was dismaying. In her vigorous, even angry, dissent, Judge Judith W. Rogers showed why the decision came as a shock to some:
"To vacate the Transport Rule, the court disregards limits Congress placed on its jurisdiction, the plain text of the Clean Air Act ... and this court's settled precedent interpreting the same statutory provisions at issue today. Any one of these obstacles should have given the court pause; none did.
"The result is an unsettling of the consistent precedent of this court strictly enforcing jurisdictional limits, a redesign of Congress's vision of cooperative federalism between the States and the federal government in implementing the [Clean Air Act] based on the court's own notions of absurdity and logic that are unsupported by a factual record, and a trampling on this court's precedent on which the [EPA] was entitled to rely in developing the Transport Rule ... ."
This is tough language, but the average American will still be left at a loss to know who has the best of the legal argument. What is clear is the bad effect this decision will have. After all, ordinary American lungs must breathe the best air that the political and legal systems allow -- and that won't be improving any time soon.
The EPA estimated that the Transport Rule by 2014, in conjunction with other actions, would have cut sulfur dioxide emissions nationwide by 73 percent over 2005 levels and emissions of nitrous oxides by 54 percent. It also would have prevented an estimated 34,000 premature deaths. For the moment, the EPA will go on enforcing a weaker Bush-era rule.
It is yet another issue for Congress and the presidential election. But don't hold your breath for clean air -- pollution and the answer to it will still be blowin' in the wind.