“We have asked the U.S. Supreme Court to review the lower court’s
decision given the profound public interest in ensuring healthier,
longer lives for the 240 million Americans afflicted by power plant
pollution and given the appeals court’s sharp deviation from settled
legal principles,” said Sean Donahue, an attorney with the Environmental
The Natural Resources Defense Council, the Environmental Defense Fund, the American Lung Association and other groups filing the Supreme Court petition say the appellate court fumbled the case on procedural and substantive grounds.
A divided three-judge panel tossed out the rule in August of 2012 and a wider slate of judges declined to reconsider that ruling in January.
The rule's demise was a victory for Republicans and industry officials who alleged it would create economic burdens and force the closure of some coal-fired power plants.
But the green groups' petition says the appeals court badly misread the “good neighbor” provisions of the Clean Air Act, which enable regulators to require curbs in emissions that cause pollution in downwind states.
“The court imposed a series of rigid strictures upon EPA’s authority to give effect to the Good Neighbor provision that are not found in the statutory text and that vastly complicate its implementation,” the petition states.
On the process side, environmentalists say the appeals court allowed opponents to raise challenges that didn’t surface during the administrative process.
“Despite the [Clean Air] Act’s rigorous exhaustion requirement, the panel ruled on issues that the challengers had plainly failed to raise during the public comment period,” the petition states.