On April 29, the Supreme Court revived EPA’s Cross-State Air Pollution Rule in Environmental Protection Agency v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014).  That set of rules would have imposed budgets on air emissions by sources in upwind states in order to implement the “Good Neighbor” provision, section 110(a)(2)(D)(i)(I)  of the Clean Air Act. My monthly environmental practdice column in the Pennsylvania Law Weekly considers the lessons from Justice Ginsburg’s opinion.  She makes entirely clear that Congress has provided almost no helpful guidance to EPA and, indeed, the conceptual model of air pollution that underpins the “Good Neighbor” provision is hopelessly simplistic and wrong.

Contrast her opinion with Friday’s decision in National Ass’n of Manufacturers v. Environmental Protection Agency, No. 13-1069 (D.C. Cir. May 9, 2014), denying challenges to recent revisions to the national ambient air quality standard for small particulate matter (“PM2.5”), or today’s decision in WildEarth Guardians v. United States Environmental Protection Agency, No. 13-1212 (D.C. Cir. May 13, 2014), affirming EPA’s rejection of a rulemaking petition seeking to subject coal mines to regulation as stationary sources under the Clean Air Act.  Those opinions makes Clean Air Act rulemaking look straightforward, and the court of appeals’ analyses are right out of an administrative law hornbook.  But EME Homer City Generation tells a different story in which EPA must make fundamental decisions about the environment, energy policy, and consequently the economy without much statutory help.

Read Supreme Court’s Cross-State Air Pollution Decision, 37 Pa. L. Weekly 436 (May 13, 2014), by clicking here.

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights