(New throughout, updates comments from Roberts, Kennedy, Breyer
from oral argument)
By Lawrence Hurley
WASHINGTON Dec 10 U.S. Supreme Court justices
offered President Barack Obama's administration some
encouragement on Tuesday as they weighed the lawfulness of a
federal regulation limiting air pollution that crosses state
lines, mostly emissions from coal-fired power plants.
Although it was unclear how the court would rule, a majority
of the eight justices hearing the case at points in the
90-minute argument voiced some support for the regulation, which
has been challenged by some states and industry groups.
The government is defending a regulation issued under the
federal Clean Air Act that had been due to go into effect in
January 2012, requiring some states to cut the smog and soot
that travels from their power plants downwind to states further
The ninth justice, Samuel Alito, recused himself from the
case for undisclosed reasons.
The regulation, which requires 28 states to reduce emissions
of sulfur dioxide and nitrogen oxides, was put on hold while
courts weighed the challenges.
Among the challengers are Entergy Corp, Luminant
Holding Company and the United Mineworkers of America.
In striking down the rule in an August 2012 ruling, the U.S.
Court of Appeals for the District of Columbia Circuit wrote in
part that the U.S. Environmental Protection Agency could not
impose a federal plan on a state until the state was given
notice of the amount of pollution it emitted that makes it more
difficult for other states, downwind, to meet government-set air
The appeals court also found that EPA authority was limited
over what factors it could consider when setting targets for the
The Obama administration appealed the decision to the
Both Chief Justice John Roberts and Justice Anthony Kennedy,
two members of the conservative wing of the court, offered some
encouragement to the administration.
Roberts challenged Jonathan Mitchell, a lawyer representing
Texas and other states that object to the regulation.
Mitchell said the EPA had "left states completely in the
dark" about what their obligations were.
In his response, Roberts seemed to defend the EPA's approach
while acknowledging the difficulties facing the states.
"It seems to me that if EPA had taken a different view, it
would have been contrary to the statute," he said.
Roberts also appeared receptive to the administration's
argument that it could consider cost-effectiveness when
determining what emissions reduction goals a state should face.
The administration says that the Clean Air Act requirement
that the EPA and states limit pollution that will "contribute
significantly" to another state's air quality problems is not
limited to consideration of the amount of pollution. The agency
can also take into account how difficult it is to reach a
particular target, government lawyers say.
Roberts used a basketball analogy in an exchange with Peter
Keisler, a lawyer representing business interests challenging
the EPA rule.
"If you ask the coach what significantly contributed to the
loss, he's going to talk about the missed layup rather than the
missed desperation throw, even though, as far as amount, each
was going to count for two points," he said.
Kennedy also seemed sympathetic to the cost-effectiveness
"Can't you say that the contribution in one case is more
significant than the other, based on feasibility?" he asked
Throughout the argument, the liberal members of the bench
stressed that states could still have a say in the process even
after EPA has told them what their targets should be. Under the
Clean Air Act, states can make a counter-proposal at a later
date, Justice Elena Kagan and others said.
A ruling for the EPA would not be "the end of the game," she
Justice Stephen Breyer, another justice on the liberal wing,
noted that the approach taken by the EPA might actually be the
least troublesome way of addressing the issue. In an exchange
with Mitchell, he indicated that the alternative would be to
burden states with expensive targets that do not have a huge
impact on air pollution.
"It sounds to me like you are asking them to do the
impossible," he said.
A ruling is expected by the end of June. The two
consolidated cases are EPA v. EME Homer City Generation and
American Lung Association v. EME Homer City Generation, U.S.
Supreme Court, 12-1182 and 11-1183.
(Reporting by Lawrence Hurley; Editing by Howard Goller, Leslie
Adler and David Gregorio)