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Pollution rule could be revived

Regulation targets cross-state polluters

U.S. Supreme Court justices hinted yesterday they might revive one of President Obama’s biggest air-quality efforts, a rule that would curb emissions from coal-fired power plants in 28 states.

In a 90-minute argument session featuring analogies to last-second shots in tight basketball games, the justices questioned contentions made by challengers to the Environmental Protection Agency rule, which targets air pollution that crosses state lines.

The rule – struck down by a lower court and being challenged by power companies, states and miners – has never taken effect. It would force companies including Texas’s largest power producer, Energy Future Holdings Corp.’s Luminant, to either shutter old plants or invest billions of dollars in pollution-control technology. The administration says the rule would prevent as many as 34,000 premature deaths a year.

The rule would use a modified cap-and-trade system to limit emissions of sulfur dioxide and nitrogen oxide in 28 states whose pollution blows into neighboring jurisdictions. All are in the eastern two-thirds of the country.

The court’s four Democratic appointees, at times joined by Chief Justice John Roberts and Justice Anthony Kennedy, suggested that the EPA had adhered to the language of the Clean Air Act.

Had the EPA taken another approach, “it would have run contrary to the statute,” Roberts said.

Justice Samuel Alito isn’t taking part in the case, meaning the administration must persuade five of the other eight justices to revive the rule. A 4-4 split would leave intact the lower court ruling voiding the regulation.

The argument is one of two court clashes in Washington, D.C., yesterday that will determine the future of Obama’s environmental agenda. Judges at a federal appeals court less than a mile away are considering a challenge to separate EPA standards on mercury and acid gases from power plants.

That same federal appeals court rejected the cross-state pollution rule last year.

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