New York and other states that are downwind from states that emit air pollution caught an important break on Tuesday when the U.S. Supreme Court upheld the authority of the Environmental Protection Agency to deal with cross-state air pollution. The 6-2 ruling, with one justice abstaining, could hardly have been expected from this court.
Indeed, lower courts had sided with upwind states and industries, which had challenged the EPA’s rule targeting pollution that blows across state lines. The agency was required to take steps to protect downwind states by the Clean Air Act. It took until 2011, over two presidential administrations, for the EPA to issue rules that, until this week, were being litigated and under threat of judicial rejection.
Easterners know a lot about the disadvantages of living downwind from polluting states, in particular those with coal-fired power plants.
The EPA has estimated that those emissions trigger more than 400,000 asthma attacks and contribute to 34,000 premature deaths each year. Vast sections of the Adirondack Mountains were poisoned by acid rain, which damaged vegetation and made many lakes incapable of supporting life.
The idea that this state, and others similarly harmed, had no choice but to accept this grim fate was intolerable – politically, environmentally and economically – and, on Tuesday, the Supreme Court finally took the shackles off.
The specific argument was over how to apportion responsibility for the pollution emitted. In rejecting the EPA’s rule, the U.S. Court of Appeals for the D.C. Circuit ruled that reductions in pollution must be proportional to the state’s share of responsibility for downwind problems.
But the Supreme Court allowed the EPA’s broader approach, which was to allow for several factors to be considered, including what it would cost and how much any state has done to cut pollution. It’s a more nuanced approach, though it’s fair to say that the dispute was over ideas that each had merit.
Ultimately, though, Justice Ruth Bader Ginsburg, who wrote for the majority, observed that the questions were more than a little complex, and called for a sophisticated response.
“Most upwind States propel pollutants to more than one downwind State, many downwind States receive pollution from multiple upwind States, and some States qualify as both upwind and downwind,” she wrote. “The overlapping and interwoven linkages between upwind and downwind States with which EPA had to contend number in the thousands.”
The problem has been that the states and industries fighting this rule weren’t concerned so much about merit as they were about deep-sixing any rule that forced them to meet what is demonstrably their responsibility. Much as it once was with smokers in restaurants, they felt it was their right to pollute the air around them, while those who inhaled their fumes were left with no recourse but to breathe in the pollutants.
It wasn’t right regarding the poisons in cigarettes and it’s not right regarding the poisons in the sulfur, nitrogen and other gases emitted by industries. New York has not been immune to this responsibility, but it is far ahead of other states in dealing with it.
It would be too much to hope that this fight is now over and that the states affected will meet, rather than seek to evade, the EPA’s newly endorsed rule. Nevertheless, the ruling marks a big step toward protecting the environment at a cost that is reasonable.