Environmental lawyers and policy wonks are eagerly awaiting the U.S. Supreme Court's ruling in the EPA v. EME Homer City Generation case (heard by the Court in December), which revolves around a challenge to the EPA's new Cross-State Air Pollution Rule – a rule designed to address the longstanding problem of interstate air pollution. The D.C. Circuit struck down the rule last year in a 2-1 decision. With the Obama Administration pressing ahead with new, controversial environmental regulations, how the Court handles EME Homer may offer important clues about where the Court – especially Justice Kennedy, who is the wildcard here – will stand in future, key environmental cases.
EME Homer is also the first big case this term for the U.S. Chamber of Commerce, which weighed in with an amicus brief in support of those challenging the rule. The Chamber has won the majority of its cases before the Roberts Court (88% of them since the October 2011 term), and has been on a 7-case winning streak since a defeat in Massachusetts v. EPA in 2007.
The case presents an interesting legal dilemma for conservative justices on the Court. Usually, the Court's conservative wing chastises lower-court judges who loosen procedural rules allowing parties to raise new arguments that should have been raised in earlier proceedings, and who read things into statutes that are at best ambiguous (particularly in the face of a contrary interpretation by a government agency), both of which happened in the court below, but this time benefiting the conservative interests challenging the rule.
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