Unpacking EME Homer: Cost, Proportionality and Emissions Reductions
49 Pages Posted: 25 Aug 2014 Last revised: 24 Jun 2015
Date Written: August 24, 2014
EME Homer involved the vexing problem of interstate air pollution, which can make it impossible for even the most diligent downwind state to attain the air quality levels required by federal law. Justice Ginsburg’s opinion for the Court gives EPA broad discretion to craft regulatory solutions for this problem. The case presented the Court with considerable difficulties. Although the specific statutory provision at issue was deceptively simple, the underlying problem of allocating pollution reductions was extremely complex, especially given the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in simplified numerical examples.
Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s on-going efforts to deal with the problem of interstate pollution. But it also has broader implications about the role of cost under federal pollution laws, about EPA’s flexibility in mandating state plans to reduce carbon emissions under sections 111(d) and 115 of the Clean Air Act, and about the scope of judicial deference under the statute.
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