The movement of air pollutants across state lines, or interstate air pollution, presents an externalities problem in which downwind states suffer from pollution originating from outside of the state and are powerless to address it. The Environmental Protection Agency has made multiple attempts to regulate interstate air pollution, its most notable success in the Cross-State Air Pollution Rule, upheld in EME Homer, where the Supreme Court approved a framework that would allocate emissions among upwind states based on a cost-minimization principle. But in the years following EME Homer, EPA has repeatedly used this same principle to reject petitions to regulate polluting sources affecting attainment in downwind states. This Note challenges whether the Cross-State Air Pollution Rule produced a desirable framework, particularly in requiring downwind states to prove cost-effectiveness of pollution controls in section 126 petitions. The Note identifies four issues in EPA’s regulation of interstate air pollution under the Cross-State Air Pollution Rule. It also suggests an alternative approach from California’s ozone transport program. The Note highlights these problems in hopes of informing EPA’s future rules around interstate air pollution as EPA has yet to produce regulations on pollution transport under the 2015 federal ozone standards or from non-power sector sources. More effective regulation of interstate air pollution would produce significant public health benefits, particularly in underserved communities that bear the greatest air pollution burdens.
Being a Good Neighbor: Evaluating Federal Regulation of Interstate Air Pollution Under the Cross-State Air Pollution Rule
