UPDATE 3-US Supreme Court won't hear challenge to EPA rulemaking

Tue Jan 22, 2013 2:19pm EST

* Court order a victory for Obama administration
    * Grupo Mexico unit objected to sulfur dioxide standard
    * Sulfur dioxide linked to respiratory problems


    By Jonathan Stempel
    WASHINGTON, Jan 22 (Reuters) - The U.S. Supreme Court
refused on Tuesday to consider reducing the Environmental
Protection Agency's authority to set air quality standards,
leaving intact a tough new limit on sulfur dioxide emissions in
a victory for the Obama administration.
    Without comment, the court decided not to hear an appeal by
Grupo Mexico SAB's Asarco LLC unit of a lower
court ruling that upholds a 2010 EPA rule limiting sulfur
dioxide in the air to 75 parts per billion over one hour.
    Short-term exposure to sulfur dioxide has been linked to
respiratory problems. .
    On Monday, U.S. President Barack Obama in his inauguration
speech made the politically charged issue of climate change a
top priority for his second term. He cited a need to protect
future generations from man-made pollutants. 
    "The EPA's efforts to regulate greenhouse gases during
Obama's first term have been upheld in court, which is a
favorable sign for proponents of climate change regulation,"
said David Uhlmann, a University of Michigan law professor and
former chief of the U.S. Department of Justice Environmental
Crimes Section, in a telephone interview.
    Under the Clean Air Act, the EPA is authorized to adopt
standards that are necessary to protect the public health, while
allowing an "adequate margin of safety."
    Asarco, whose copper smelter in Hayden, Arizona, is one of
the three main U.S. copper smelters, had been appealing a July
decision by the Washington, D.C., Circuit Court of Appeals to
uphold the EPA rule. It estimated the rule could cost companies
$1.5 billion.
    "The phrase 'adequate margin of safety' provides a needed
buffer, given that the line where environmental harms become
significant is too often very difficult to predict until after a
harmful situation occurs," said Zygmunt Plater, a professor at
Boston College Law School, in a telephone interview.
    Leaving the D.C. Circuit ruling intact "suggests that
implementation of protective regulations are not likely to be as
constrained as they might have been a decade ago," he added.
    
    EPA RULE NOT ARBITRARY
    Asarco contended that the D.C. Circuit gave the EPA an
effective license to set needlessly stringent environmental
standards, rather than standards "not lower or higher" than
necessary as it said was required under Supreme Court precedent.
    But in upholding the new standard, the D.C. Circuit said it
lacked jurisdiction to review the EPA's rulemaking and that the
agency did not act arbitrarily or unreasonably.
    Sulfur dioxide is typically the result of fossil fuel
combustion at power plants and other industrial facilities. The
EPA had first set sulfur dioxide standards in 1971.
    The U.S. Department of Justice had urged the Supreme Court
not to accept Asarco's appeal. Freeport-McMoRan Copper & Gold
Inc, the world's largest publicly traded copper
producer, filed a brief supporting Asarco's appeal.
    Robert Steinwurtzel, a lawyer for Asarco, did not
immediately respond to a request for comment. John Elwood, a
lawyer for Freeport-McMoRan, declined to comment.
    Uhlmann said courts are typically reluctant to get immersed
in the nuts-and-bolts of environmental decision making,
recognizing the EPA's greater expertise.
    "The Supreme Court is far more likely to get involved when
the issue is the authority to regulate," he said.
    The case is Asarco LLC v. U.S. Environmental Protection
Agency et al, U.S. Supreme Court, No. 12-510.
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