On April 29, in a 6-2 decision the U.S. Supreme Court upheld the Cross-State Air Pollution Rule. Justice Ruth Bader Ginsburg, wrote for the majority who overturned the D.C. Circuit on two points. It declared that the courts were obliged to defer to EPA’s expertise on how to fashion an explicit “good neighbor policy” that dealt with “the vagaries of the wind.” The Court also ruled that EPA had no duty to give the affected states a new opportunity to fashion their own pollution-control strategies to protect their neighbors, before EPA stepped in to develop its own approach.
Justice Ginsburg’s opinion was joined by Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer, Elena Kagan, Anthony M. Kennedy, and Sonia Sotomayor. Justice Samuel A. Alito, Jr., took no part in the ruling; no reason was given for his recusal as reported by Lyle Denniston of SCOTUSblog.
Justice Antonin Scalia, in a dissent for himself and Justice Clarence Thomas, argued that the ruling implicated “the major problem that many citizens have with the federal government these days: that they are governed not so much by their elected representatives as by an unelected bureaucracy operating under vague statutory standards.”
During a recent Texas Tribune event with a panel discussing the future of Texas’ Electrical Grid, speakers briefly commented on this ruling noting they still need to review the ruling but will be monitoring. The panel included: Trip Doggett, president and CEO of the Electric Reliability Council of Texas; Marita Mirzatuny, project manager for the Environmental Defense Fund’s U.S. Climate and Energy Program; John Fainter Jr., president and CEO of the Association of Electric Companies of Texas, Inc.; and Doyle Beneby, president and CEO of CPS Energy.