On June 18, 2021, twenty (20) states along with additional supporters filed a request for appeal to the U.S. Supreme Court that has the potential to affect States’ rights to regulate emissions limits under the Clean Air Act.

Requesting the Supreme Court to hear an appeal involves filing a “Petition for a Writ of Certiorari” and those requesting the appeal are called “Petitioners.” The Clean Air Act provides certain powers to the U.S. Environmental Protection Agency (“EPA”) to regulate emissions.

This Petition sums up numerous appeals from lower courts that all question the limits of the EPA’s authority to regulate emissions under the Clean Air Act.

Different sources, as categorized by the Clean Air Act, are regulated differently. For “existing sources,” the Clean Air Act instructs the EPA to create “guidelines,” but allow states to submit their own plans within those guidelines. 42 U.S.C. § 7411(d)(1). According to the Petitioners, the EPA has exceeded this authority by creating binding, nation-wide standards that are beyond the scope of the “guidelines” the EPA is authorized to create.

This concept of the federal government promulgating guidelines and leaving the specific regulations up to the states is known as “cooperative federalism.” The Petitioners argue that the EPA’s current interpretation of section 7411(d) ignores the cooperative federalism approach prescribed by the Clean Air Act and gives too much regulatory power to the EPA. Petitioners claim that the nationwide performance standards “deprive States of all implementation and decision making power in creating their Section 111(d) plans.”

It is still to be seen whether the Supreme Court will hear this case. If so, it would clear up many questions about the seemingly blurry line between federal and state regulatory powers under the Clean Air Act. You can keep updated with the docket as well as read the full petitioner here: https://www.supremecourt.gov/docket/docketfiles/html/public/20-1780.html