Federal Judiciary

EPA moves to dismiss Clean Air Act case, reversing Bush Administration policies

By Akin Gump Supreme Court Practice Group

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 had challenged a DC Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States had opposed the Bush Administration’s position.

Whereas the original petition had protested that the EPA had the discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act, 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.

The parallel case 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 the jump

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.

• Opinion below (D.C. Circuit)
• Petition for certiorari (08-352)
• Petition for certiorari(08-512)
• Brief in opposition

Full post as published by SCOTUSBLOG on February 06, 2009 (boomark / email).