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Looking to Upwind States to Reduce Interstate Ozone Pollution

September 2001

Citation: ELR 11045

Author: Patricia Ross McCubbin

In 1998, faced with mounting evidence that many eastern and midwestern states could not comply with national air quality standards for ozone (O3) pollution due, in part, to emissions originating in upwind states,1 the U.S. Environmental Protection Agency (EPA) issued a highly controversial rule, the "NOx SIP [State Implementation Plan] Call," requiring 23 states to reduce their emissions.2 For the first time, EPA had initiated an attempt under the federal Clean Air Act (CAA)3 to reduce long-range interstate O3 pollution.

Unprecedented in nature and affecting nearly half the nation, the NOx SIP Call was challenged by 8 of the 23 upwind states along with dozens of industries.4 They made two key arguments: first, that EPA had improperly identified which upwind states' emissions were responsible for interstate O3 pollution; and, second, that EPA had violated states' rights under the cooperative federalism mandated by the CAA.5 On March 3, 2000, however, in Michigan v. U.S. Environmental Protection Agency,6 a divided panel of the U.S. Court of Appeals for the District of Columbia Circuit upheld the rule in all major respects. To explain the importance of this complex case, which affirmed EPA's authority to regulate interstate air pollution, this Article provides an overview of the NOx SIP Call and discusses the two most important issues addressed by the Michigan court.7

Professor McCubbin is an assistant professor at the Southern Illinois University (SIU) School of Law in Carbondale, Illinois, where she teaches several environmental law courses. Prior to joining the faculty at SIU, she was an attorney with the Environmental Defense Section of the U.S. Department of Justice (DOJ), where she served as co-counsel for the U.S. Environmental Protection Agency (EPA) in Michigan v. EPA, 213 F.3d 663, 30 ELR 20407 (D.C. Cir. 2000), cert. denied, 69 U.S.L.W. 3297 (U.S. Mar. 5, 2001) (No. 00-632). She wishes to thank Matthew Goetten for his helpful research and Kathleen Bassi, Andrea Bear Field, Jack Lipshultz, and Mel Schulze for their insightful comments. The views expressed herein are solely the author's and should not be attributed to those who offered comments on the Article, EPA, or the DOJ. Another version of this Article will appear in Patricia Ross McCubbin, Michigan v. EPA: Interstate Ozone Pollution and EPA's "NOx SIP Call," 20 ST. LOUIS U. PUB. L. REV. 45 (forthcoming 2001).

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