Michigan v. EPA: Interstate Ozone Pollution and EPA's 'NOx SIP Call'

Abstract:     
This article addresses one of the most important rules written by EPA under the Clinton Administration to implement the federal Clean Air Act--EPA's highly controversial demand that twenty-three states reduce emissions of nitrogen oxides to help alleviate ozone pollution in downwind states. That rule, the so-called "NOx SIP Call," was upheld in all major respects by the U.S. Court of Appeals for the D.C. Circuit in Michigan v. EPA. As this article explains, the court's decision established important principles for future interstate air pollution disputes, including the ongoing litigation about EPA's Clean Air Interstate Rule (CAIR). In particular, the article analyzes the court's ruling that EPA may consider control costs when determining which upwind emissions "contribute significantly" to downwind air pollution, even though the statute does not expressly authorize such cost considerations. The article also analyzes the court's conclusion that EPA did not violate the Clean Air Act's model of "cooperative federalism" by establishing specific emission budgets for each state.

Number of Pages in PDF File: 20

Keywords: environmental law, EPA, Clean Air Act, interstate pollution

Accepted Paper Series