December 8, 2013

Washington Notebook: Maine’s air quality has stake in two pollution cases

They will pit business interests against public health advocates and test the scope of the federal government’s regulatory reach.

By Kevin Miller kmiller@pressherald.com
Staff Writer

WASHINGTON — On Tuesday, two of the nation’s highest courts will hear two separate pollution cases with potential implications for air quality in Maine and its New England neighbors.

click image to enlarge

The U.S. Court of Appeals for the District of Columbia Circuitwill hear arguments Tuesday over EPA rules requiring coal-fired power plants to reduce emissions of mercury, arsenic and other toxic substances.

2012 Associated Press File Photo

The U.S. Supreme Court will hear arguments about whether the U.S. Environmental Protection Agency overstepped its legal bounds by seeking to hold states accountable for air pollution that drifts into downwind states.

Blocks away at the U.S. Court of Appeals for the District of Columbia Circuit, lawyers will spar over EPA rules requiring coal-fired power plants to reduce emissions of mercury, arsenic and other toxic substances.

Both cases pit business interests – such as coal companies and utilities – against public health advocates. They will also, however, test the scope of the federal government’s regulatory reach under the Clean Air Act, with the resulting verdicts likely to affect future regulation.

“Maine has more of a stake than most states with these laws because of our geography,” said Ed Miller, senior vice president for policy at the American Lung Association of the Northeast. “And we have higher rates of lung disease, higher rates of asthma and we have a larger older population that tends to be more susceptible to air pollution.”

Maine is often described as being located at the “tailpipe” of pollution originating from the megalopolis stretching from Boston to Washington, D.C., and from Southern and Midwestern states with less stringent emissions requirements.

The Supreme Court case is likely to draw the most attention because it essentially pits industrial, coal-rich or coal-dependent states against states less reliant on the cheap, abundant but dirtier fuel source.

Under the Clean Air Act, states are largely responsible for cleaning up their own air pollution. The problem, according to Clean Air Task Force senior counsel David Marshall, is that much of the industrial pollution found in the skies over Northeastern states originated to the south or west.

The EPA’s 2011 cross-state air pollution rule allows the agency to impose stricter federal emissions levels for sulfur dioxide and nitrogen oxide – key components of smog and harmful ground-level ozone – on 28 states. The EPA cited the Clean Air Act’s “Good Neighbor” clause, which aims to ensure one state does not overly contribute to air pollution in another.

“I think we have a strong legal case and I think we have a strong factual case,” said Marshall, who is based in New Hampshire.

Fifteen of the 28 states targeted by the EPA action disagreed, however. Their legal challenge, which is supported by another eight states, argues the agency violated states’ rights by bypassing their ability to regulate pollution sources within their own borders.

The U.S. Court of Appeals for the District of Columbia Circuit concurred last year, ruling that the EPA overstepped the authority granted to it by Congress. The court overturned the rule.

The other case centers on another 2011 EPA rule that set for the first time national standards for mercury and other toxins from power plants.

The rule required largely coal-fired power plants to begin transitioning to newer technology to reduce emissions of mercury and other toxins. Maine environmental regulators cheered the decision, and Republican Sens. Olympia Snowe and Susan Collins later joined with Democrats and three other Republicans to block a bill that would have halted the rule.


The former head of the U.S. Small Business Administration, Karen Mills of Brunswick, recently held up Maine’s boat-building industry as a possible model for reviving local economies elsewhere.

Mills, who left President Obama’s Cabinet earlier this year, recently discussed the resurgence of the industry in a column posted online by the magazine Entrepreneur.

(Continued on page 2)

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