EME Homer City Generation, L.P. v. EPA: The Search for Meaningful Regulation of Interstate Pollution Under the Clean Air Act

Abstract

EME Homer City Generation, L.P. v. EPA illustrates the difficulty the EPA faces as it attempts to formulate effective and efficient regulation of cross-border environmental harm within the boundaries created by the Clean Air Act. The decision imposes new limitations on the EPA’s ability to enact and enforce regional solutions to what is a fundamentally regional problem. Meanwhile, downwind states continue to bear the public health and regulatory burdens resulting from upwind contributions to poor air quality. This Comment analyzes the implications of EME Homer City Generation for future attempts at meaningful regulation of interstate air pollution. Part I briefly examines the historical failures of federal regulation to adequately address the problem and recent attempts to regulate under the Act. Part II discusses the Cross-State Air Pollution Rule, the EME Homer City Generation decision, and prospects for future regulation in detail. This Comment concludes that the EPA should appeal the decision to the Supreme Court and it should be overturned. If the decision is allowed to stand, amendment of the Clean Air Act is necessary to allow regulation of interstate air pollution that is effective and not unnecessarily burdensome.