administrative law

EPA v. EME Homer City Generation

Issues: 

Consolidated with American Lung Association v. EME Home City Generation (12-1183).

  1. Did the EPA permissibly interpret the phrase “contribute significantly” when it balanced achievable emission reduction levels against the cost of achieving such emission reductions?   
  2. Can states wait for the EPA to adopt a rule quantifying each state’s “good neighbor” obligations before they adopt a state implementation plan prohibiting emissions that “contribute significantly” to other states’ pollution problems?

In 1963, in response to growing concerns of pollution, Congress passed the Clean Air Act (CAA). The CAA requires the Environmental Protection Agency (EPA) to set certain air quality standards for harmful pollutants, and includes a “Good Neighbor” provision requiring states to adopt plans that prohibit pollution that would “contribute significantly” to other states’ nonattainment of these standards.  However, the CAA does not define “significant contribution.”  In 2011, the EPA finalized a rule known as the “Transport Rule.”  Mirroring the language of the “good neighbor” provision, the Transport Rule defines emission reduction obligations for several upwind states that “contribute significantly” to downwind states’ nonattainment of the EPA’s air quality standards.  In determining what constitutes a significant contribution, the EPA balanced achievable emission reductions against the cost of achieving those reductions.  However, in EME Homer City Generations v. EPA, the D.C. Circuit struck down the Transport Rule and rejected the EPA’s analysis for determining what constitutes a significant contribution in this context.  These two cases present the Supreme Court with questions about the EPA’s interpretation of its statutory grant of authority under the CAA as well as questions about the jurisdiction of the D.C. Circuit to hear the challenges presented.  This case also raises concerns about federal intervention in state affairs and public health concerns posed by the EPA’s interpretation of the CAA.  Should the Supreme Court decide this case on the merits, the Court’s decision will significantly affect the EPA’s grant of authority to regulate interstate pollution. 

Questions as Framed for the Court by the Parties: 

EPA V. EME HOMER CITY GENERATION

The Clean Air Act, 42 U.S.C. 7401 et seq. (Act of CAA), requires the Environmental Protection Agency (EPA) to establish National Ambient Air Quality Standards (NAAQS) for particular pollutants at levels that will protect the public health and welfare. 42 U.S.C. 7408, 7409.  “[W]ithin 3 years” of promulgation of a [NAAQS],” each State must adopt a state implementation plan (SIP) with “adequate provisions” that will, inter alia, “prohibit[]” pollution that will “contribute significantly” to other States’ inability to meet, or maintain compliance with, the NAAQS. 42 U.S.C. 7410(a)(1), (2)(D)(i)(I).  If a State fails to submit a SIP or submits an inadequate one, the EPA must enter an order so finding. 42 U.S.C. 7410(k).  After the EPA does so, it “shall promulgate a [f]ederal implementation plan” for that State within two years. 42 U.S.C. 7410(c)(1).   

The questions presented are as follows: 

  1. Whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief.
  2. Whether States are excused from adopting SIPs prohibiting emissions that “contribute significantly” to air pollution problems in other States until after the EPA has adopted a rule quantifying each State’s interstate pollution obligations.
  3. Whether the EPA permissibly interpreted the statutory term “contribute significantly” so as to define each upwind State’s “significant” interstate air pollution contributions in light of the cost-effective emission reductions it can make to improve air quality in polluted downwind areas, or whether the Act instead unambiguously requires the EPA to consider only each upwind State’s physically proportionate responsibility for each downwind air quality problem.

American Lung Association v. EME Home City Generation (12-1183)

QUESTIONS PRESENTED:

The Clean Air Act’s “Good Neighbor” provision requires that state implementation plans contain “adequate” provisions prohibiting emissions that will “contribute significantly” to another state’s nonattainment of health-based air quality standards. 42 U.S.C. 7410(a)(2)(D)(i).  A divided D.C. Circuit panel invalidated, as contrary to statute, a major EPA regulation, the Transport Rule, that gives effect to the provision and requires 27 states to reduce emissions that contribute to downwind states’ inability to attain or maintain air quality standards.  The questions presented are:

  1. Whether the statutory challenges to EPA’s methodology for defining upwind states’ “significant contributions” were properly before the court, given the failure of anyone to raise these objections at all, let alone with the requisite “reasonable specificity,” “during the period for public comment,” 42 U.S.C. 7607(d)(7)(B);
  2. Whether the court’s imposition of its own detailed methodology for implementing the Good Neighbor provision violated foundational principles governing judicial review of administrative decision-making; 
  3. Whether an upwind state that is polluting a downwind state is free of any obligations under the Good Neighbor provision unless and until EPA has quantified the upwind state’s contribution to downwind states’ air pollution problems.  

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Facts

In passing the Clean Air Act, Congress empowered the Environmental Protection Agency (EPA) to set National Ambient Air Quality Standards (NAAQS), the maximum permissible levels of common pollutants released into the air.  See EME Homer City Generation v. EPA, 696 F.3d 7, 12 (D.C. Cir. 2012).

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Delia v. E.M.A.

E.M.A., a minor, suffered catastrophic injuries during her birth due to the physician's negligence during delivery. As part of its Medicaid program, North Carolina paid for E.M.A.’s medical expenses upon her mother’s agreement to reimburse the Medicaid program for any recovery gained from a third party to cover E.M.A.’s medical expenses. When E.M.A. settled her claim against the physician for a fraction of her medical costs, North Carolina attached a lien equal to one third of the total settlement. In this case, the Supreme Court will resolve a conflict between the North Carolina Supreme Court and the United States Court of Appeals for the Fourth Circuit.  The Court will decide whether a North Carolina law that allows the North Carolina Department of Health and Human Services (“DHHS”) to assert a lien against a Medicaid recipient's recovery from a third party, when limited to the lesser of either the total amount of medical expenses or one third of the Medicaid recipient’s total settlement amount, violates the "no-lien" provision of the Medicaid Act. DHHS argues that the North Carolina statute is consistent with the Medicaid Act’s no-lien provision because it operates as an advanced agreement to apportion one third of the settlement toward medical expenses.  E.M.A. responds that the statute violates the Medicaid Act because it allows DHHS to recover a proportion of the settlement that is greater than her medical expenses.  This case will allow the Court to balance the interest that States have in maintaining solvent Medicaid programs against the interests of Medicaid claimants who fail to recover sufficient damages from third-parties to cover their medical costs.

Questions as Framed for the Court by the Parties: 

Whether N.C. Gen. Stat. § 108A-57 is preempted by the Medicaid Act's anti-lien provision as it was construed in Arkansas Department of Health and Human Services v. Ahlborn, 547 U.S. 268 (2006), an issue on which the North Carolina Supreme Court and the United States Court of Appeals for the Fourth Circuit are in conflict.

Issue

Does N.C. Gen. Stat. §108A-57 violate the anti-lien provision of the Medicaid Act as it was interpreted in Arkansas Department of Health and Human Services v. Ahlborn?

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City of Arlington, Texas, et al. v. Federal Communications Commission, et al. (11-1545) and Cable, Telecommunications, and Technology Committee of the New Orleans City Council v. Federal Communications Commission (11-1547)

A boom in wireless communications has prompted the building of more facilities for wireless services. While necessary to manage the growing demand for wireless services, these facilities can be unpopular neighbors in a community. Although the Communications Act requires a local government to respond within a reasonable time period to requests for building these facilities, the law does not specify what exactly is a reasonable time period. In 2008, the Federal Communications Commission ("FCC") set timeframes on zoning authorities for processing requests to build wireless facilities. The Petitioner Cities of Arlington, Texas, and New Orleans, Louisiana, challenged the FCC’s timeframes by arguing that the FCC overstepped its power under the Communications Act. When the Fifth Circuit Court of Appeals concluded that the FCC acted within its power, Arlington and New Orleans challenged that the Fifth Circuit improperly submitted its own judgment to that of the FCC on the question of the FCC’s scope of authority. Arguing to uphold the decision of the Fifth Circuit, Respondent FCC contends that Congress intended to empower the FCC to interpret the Communications Act in all its provisions. Differing from the FCC, Respondent Cellco (a partnership of four corporations) argues that although Congress did not empower the FCC to determine the limits of its own authority, the Fifth Circuit was right to defer to the FCC on these timeframes in particular. If the U.S. Supreme Court holds for Arlington and New Orleans, the uniformity in timely construction of wireless facilities may suffer. However, a holding for the FCC may allow the FCC and other agencies to expand their own powers at the expense of local governments. Further, if the U.S. Supreme Court holds for Cellco and the FCC, local governments may lose the flexibility and power to respond to local concerns. 

Questions as Framed for the Court by the Parties: 

This case involves a challenge to the FCC's jurisdiction to implement §332(c)(7) of the Communications Act of 1934, titled "Preservation of Local Zoning Authority." Section 332(c)(7) imposes certain limitations on State and local zoning authority over the placement of wireless service facilities, but authorizes the FCC to address only one of these limitations; it states that no other provision "in this Act" may ''limit'' or "affect" State and local authority over wireless facilities placement. The FCC concluded that other provisions "in this Act" authorize it to adopt national zoning standards to implement §332(c)(7). The Fifth Circuit deferred to the FCC's jurisdictional determination applying Chevron U.S.A. Inc. v. NRDC, Inc., 467 U.S. 837 (1984), but acknowledged that "[t]he Supreme Court has not yet conclusively resolved the question of whether Chevron applies in the context of an agency's determination of its own statutory jurisdiction, and the circuit courts of appeals have adopted different approaches to this issue."

City of Arlington, Texas, et al., v. Federal Communications Commission, et al.

1. Whether, contrary to the decisions of at least two other circuits, and in light of this Court's guidance, a court should apply Chevron to review an agency's determination of its own jurisdiction; and

2. Whether the FCC may use its general authority under the Communications Act to limit or affect State and local zoning authority over the placement of personal wireless service facilities.

Cable, Telecommunications, and Technology Committee of the New Orleans City Council v. Federal Communications Commission

1. Should Chevron deference be afforded to an administrative agency's interpretation of its own statutory jurisdiction?

2. If it is determined that an agency's interpretation of its own statutory jurisdiction should be evaluated under Chevron, did the Fifth Circuit improperly apply Chevron?

3. Did the FCC usurp the jurisdiction and authority reserved for State and local governments by Congress in its interpretation of 47 U.S.C.A. § 332(C)(7) by creating additional limitations on state and local governments beyond those provided for in the statute?

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Issues

Should a court defer to the decision of an administrative agency when determining the limits of the agency’s power? Additionally, did the Federal Communications Commission exceed its power by setting timeframes on local governments for processing requests to build wireless service facilities?

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Sebelius, Sec. of Health and Human Services v. Auburn Regional Medical Center

Since 1983, hospitals have received reimbursement for treating Medicare patients with the option of receiving additional compensation for treating low-income individuals. It was recently discovered that the Center for Medicare and Medicaid Services (CMS) miscalculated rates in the 1990s, causing certain hospitals to receive less than they were entitled to receive. Several hospitals challenged these underpayments under 42 U.S.C. 1395oo(a)(3), arguing that the 180-day deadline for challenging payments should be "equitably tolled," or extended for reasons of fairness. Although the agency that receives these challenges, the Provider Reimbursement Review Board (PRRB), concluded that the decision to extend the filing deadline was beyond its authority, the United States Circuit Court of Appeals for the D.C. Circuit held that this deadline may be extended due to a presumption for equitable tolling. Here, Petitioner Sebelius of the Department of Health and Human Services contends that Congress intended to give her the authority to decide when to toll a statute and that this is not one of those cases. In contrast, Respondents Auburn Regional Medical Center, et al., argue that a court may extend this filing deadline. If hospitals are able to challenge underpayments beyond the 180-day deadline, the caseload of PRRB may drastically increase and so slow the process of compensating hospitals. However, allowing this extension may ensure that hospitals are properly compensated. 

Questions as Framed for the Court by the Parties: 

Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary, 42 U.S.C. 1395oo(a)(3), is subject to equitable tolling.

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[Broken copy] Sebelius, Sec. of Health and Human Services v. Auburn Regional Medical Center

Unpublished

Since 1983, hospitals have received reimbursement for treating Medicare patients with the option of receiving additional compensation for treating low-income individuals. It was recently discovered that the Center for Medicare and Medicaid Services (CMS) miscalculated rates in the 1990s, causing certain hospitals to receive less than they were entitled to receive. Several hospitals challenged these underpayments under 42 U.S.C. 1395oo(a)(3), arguing that the 180-day deadline for challenging payments should be "equitably tolled," or extended for reasons of fairness. Although the agency that receives these challenges, the Provider Reimbursement Review Board (PRRB), concluded that the decision to extend the filing deadline was beyond its authority, the United States Circuit Court of Appeals for the D.C. Circuit held that this deadline may be extended due to a presumption for equitable tolling. Here, Petitioner Sebelius of the Department of Health and Human Services contends that Congress intended to give her the authority to decide when to toll a statute and that this is not one of those cases. In contrast, Respondents Auburn Regional Medical Center, et al., argue that a court may extend this filing deadline. If hospitals are able to challenge underpayments beyond the 180-day deadline, the caseload of PRRB may drastically increase and so slow the process of compensating hospitals. However, allowing this extension may ensure that hospitals are properly compensated. 

Questions as Framed for the Court by the Parties: 

Whether the 180-day statutory time limit for filing an appeal with the Provider Reimbursement Review Board from a final Medicare payment determination made by a fiscal intermediary, 42 U.S.C. 1395oo(a)(3), is subject to equitable tolling.

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Decker, et al., v. Northwest Environmental Defense Center (11-338)l Georgia-Pacific West, et al., v. Northwest Environmental Defense Center (11-347)

The Environmental Protection Agency ("EPA") has interpreted the Clean Water Act ("CWA") in such a way so that certain logging activities that cause polluted water to run off of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center ("NEDC") brought a citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability of federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties: 

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s ("EPA") rules implementing the Clean Water Act’s ("CWA") National Pollutant Discharge Elimination System ("NPDES") permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding. 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to the EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. The EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater? 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER 

Since passage of the Clean Water Act, the Environmental Protection Agency ("EPA") has considered runoff of rain from forest roads--whether channeled or not--to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, the EPA consistently has defined as non-point source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, the EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

The EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

The Ninth Circuit--in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to the EPA--rejected the EPA’s longstanding interpretation. Instead, it directed the EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:

Whether the Ninth Circuit should have deferred to the EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that the EPA regulate such runoff as industrial stormwater subject to NPDES.

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Issue(s)

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the National Pollutant Discharge Elimination System permit requirement.

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Decker, et al., v. Northwest Environmental Defense Center and Georgia-Pacific West, et al., v. Northwest Environmental Defense Center

Unpublished

The Environmental Protection Agency (EPA) has interpreted the Clean Water Act (CWA) in such a way so that certain logging activities that cause polluted water to runoff of forest roads and into ditches, culverts, or pipes are exempt from the permit process. Relying on §1365 of the CWA, the Northwest Environmental Defense Center (NEDC) brought citizen’s lawsuit in federal district court in an attempt to eliminate the exemption from the permit process. The Petitioners argue that a citizen's lawsuit was impermissible in this case because of §1369 of the CWA. The parties also do not agree on the level of deference that the EPA should have been given in interpreting its regulations. Furthermore, the NEDC takes issue with the way EPA interprets several key phrases in the CWA, which affects the substance of the EPA’s decision. The ability the federal courts to review agency action as well as the scope of an agency’s authority are at stake in this case. Also, the Supreme Court’s decision can clarify the ability of citizens to bring an action to change the EPA’s course of action under the CWA. Finally, these procedural and administrative questions could ultimately have an effect on the environment and water quality as well as the procedures loggers must follow to ensure they comply with the CWA.

Questions as Framed for the Court by the Parties: 

DECKER, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

 

(1) Congress has authorized citizens dissatisfied with the Environmental Protection Agency’s (EPA’s) rules implementing the Clean Water Act’s (CWA’s) National Pollutant Discharge Elimination System (NPDES) permitting program to seek judicial review of those rules in the Courts of Appeals. See 33 U.S.C. § 1369(b). Congress further specified that those rules cannot be challenged in any civil or criminal enforcement proceeding. Consistent with the terms of the statute, multiple circuit courts have held that if a rule is reviewable under 33 U.S.C. § 1369, it is exclusively reviewable under that statute and cannot be challenged in another proceeding.

 

Did the Ninth Circuit err when, in conflict with those circuits, it held that a citizen may bypass judicial review of an NPDES permitting rule under 33 U.S.C. § 1369, and may instead challenge the validity of the rule in a citizen suit to enforce the CWA?

 

(2) In 33 U.S.C. § 1342(p), Congress required NPDES permits for stormwater discharges “associated with industrial activity,” and delegated to EPA the responsibility to determine what activities qualified as “industrial” for purposes of the permitting program. EPA determined that stormwater from logging roads and other specified silvicultural activities is non-industrial stormwater that does not require an NPDES permit. See 40 C.F.R. § 122.26(b)(14).

 

Did the Ninth Circuit err when it held that stormwater from logging roads is industrial stormwater under the CWA and EPS’s rules, even though EPA has determined that it is not industrial stormwater?

 

GEORGIA-PACIFIC WEST, ET AL. V. NORTHWEST ENVTL. DEFENSE CENTER

 

Since passage of the Clean Water Act, the Environmental Protection Agency has considered runoff of rain from forest roads-whether channeled or not--to fall outside the scope of its National Pollutant Discharge Elimination System (“NPDES”) and thus not to require a permit as a point source discharge of pollutants. Under a rule first promulgated in 1976, EPA consistently has defined as nonpoint source activities forest road construction and maintenance from which natural runoff results. And in regulating stormwater discharges under 1987 amendments to the Act, EPA again expressly excluded runoff from forest roads. In consequence, forest road runoff long has been regulated as a nonpoint source using best management practices, like those imposed by the State of Oregon on the roads at issue here.

EPA’s consistent interpretation of more than 35 years has survived proposed regulatory revision and legal challenge, and repeatedly has been endorsed by the United States in briefs and agency publications.

 

The Ninth Circuit--in conflict with other circuits, contrary to the position of the United States as amicus, and with no deference to EPA--rejected EPA’s longstanding interpretation. Instead, it directed EPA to regulate channeled forest road runoff under a statutory category of stormwater discharges “associated with industrial activity,” for which a permit is required. The question presented is:

 

Whether the Ninth Circuit should have deferred to EPA’s longstanding position that channeled runoff from forest roads does not require a permit, and erred when it mandated that EPA regulate such runoff as industrial stormwater subject to NPDES.

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Issue(s)

Whether citizens can file a lawsuit to challenge the validity of the EPA granting an exception to the Natioanl Pollutant Discharge Elimination System permit requirement.

If a citizen's lawsuit is permissible, what level of deference, if any, should be given to the EPA’s interpretation of the Clean Water Act and the NPDES permit requirements with respect to the logging industry.

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