The New York Times had an interesting article on a recent D.C. Circuit case, EME Homer City v. E.P.A., which invalidated the EPA’s regulatory scheme for pollution. Many state power plants omit pollutants (namely sulfur dioxide and nitrogen oxides), which travel downwind and diminish air quality in neighboring states. The case concerns the EPA’s “good neighbor” provision that lowers a state’s omission cap to protect downwind states.
Essentially, the EPA exceeded its statutory authority by lowering states’ omissions caps without creating some formula to assure this was in proportion to each state’s downwind pollution. Our class discussion stressed the challenges of applying science to the law when lawyers, judges, and juries may be ill-equipped to understand it. But this case raises another challenge, when legislators, regulators, and drafters apparently lack the scientific expertise to achieve their desired goal. Here, though everyone agrees the goal is to hold polluting states responsible for their own pollution, no one has proposed a scientific method for tracing the pollutants back to the source. Until the EPA does so, its regulations are restricted under the statute.