EPA v. New Jersey

Several Michigan tribes had an interest in this case, and signed on to an amicus brief before the D.C. Circuit (here). There are still industry petitions to deal with, but with the EPA dropping one petition (the EPA’s petition is here), it’s a better litigation climate.

From SCOTUSblog:

Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.

But the first change came in an environmental case today. The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey. The petition D.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.

The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories. The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412″ and therefore does not seek review of the lower ruling.

***The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.

Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.

Turtle Talk

Obama Administration Moves to Dismiss EPA Mercury Regulation Cert Petition

EPA Cert Petition in EPA v. New Jersey