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Supreme Court looks at EPA interstate pollution rule

WASHINGTON — The Supreme Court indicated Tuesday it could breathe new life into a federal rule requiring states to reduce power plant pollution from the South and Midwest that fouls the air in the eastern U.S.

Several justices suggested during a 90-minute argument that they believe the Environmental Protection Agency did not exceed its authority when it issued its cross-state air pollution rule in 2011. A divided federal appeals court panel invalidated the rule last year.

The EPA sought to reduce pollution from power plants in 28 states that drifts above states in the Northeast and Mid-Atlantic regions. Texas led 14 states and industry groups in challenging the rule.

Sulfur dioxide and nitrogen oxide pollution from power plants can be carried long distances; the cross-border pollution has prevented many cities from complying with health-based standards set by law.

The EPA has long tried to find a way to enforce the so-called good neighbor provision of the federal Clean Air Act that prohibits states from polluting their neighbors’ air. The latest effort would cost energy utilities $800 million annually to install pollution controls on coal-fired and other plants, according to EPA estimates.

The EPA said the investments would be far outweighed by the hundreds of billions of dollars in health care savings from cleaner air. The agency said the rule would prevent hundreds of thousands of illnesses each year.

But the U.S. Circuit Court of Appeals for the District of Columbia said the EPA didn’t give states a chance to devise their own plans to reduce pollution. Because state-by-state limits on pollution were not matched with each state’s contribution to the problem, some were asked to do more to reduce pollution even though their power plants are not the worst offenders, the appeals court said.

At the Supreme Court, though, several justices said the agency appears to have wide latitude to come up with pollution controls.

“What the EPA said here was: We’re going to distinguish between states that have put a lot of technology and a lot of money into this already and on the other hand states that have lots of cheap and dirty emissions,” Justice Elena Kagan said. “And why isn’t that a perfectly rational thing to do?”

Justice Antonin Scalia was the only member of the court who appeared squarely on the side of industry and the states challenging the rule. Justice Samuel Alito is not taking part in the case, presumably because he owns stock in companies involved in it.

The eight participating justices should issue their decision by late June.

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