Lawyers representing Texas have become the first of U.S. EPA's courtroom opponents to claim that the Supreme Court's recent health care ruling could implicate the agency's power when implementing the Clean Air Act.

Such a move was expected after legal experts noted how the Supreme Court ruling in National Federation of Independent Business v. Sebelius could affect the environmental statute (Greenwire, June 29). In the ruling last month, the Supreme Court upheld the Affordable Care Act on a 5-4 vote but raised questions about the extent of federal power.

On July 20, lawyers for Texas wrote a letter to judges on the U.S. Court of Appeals for the District of Columbia Circuit in which they asked the court to take account of the ruling in ongoing litigation over EPA's move to take over the state's greenhouse gas permitting authority.

The focus for now is on part of the health care decision in which the court held, on a 7-2 vote, that the federal government cannot take away all of a state's Medicaid funding if it declines to implement new provisions that were introduced under the reform law. The court saw such a move as akin to coercion.

Congress cannot "penalize states that choose not to participate in that new program by taking away their existing Medicaid funding," Chief Justice John Roberts wrote in the majority opinion.


Lawyers at the Baker Hostetler law firm, which represents Texas, were clearly paying attention to the academic debate that immediately broke out, in which some scholars saw similarities between the Medicaid provisions in the health care law and how the federal government interacts with states over their role in enforcing the Clean Air Act via state implementation plans, known as SIPs.

The Texas case, which also involves Wyoming, has not yet been argued (E&ENews PM, June 5).

In the letter, attorney Mark DeLaquil wrote that the Supreme Court decision "underscores the significant constitutional infirmities" raised by EPA's move in Texas.

In the context of the Texas litigation, the states complain that EPA should have given them more time to come up with new SIPs for major new or modified sources in response to the Obama administration's move to regulate greenhouse gas emissions. EPA's takeover would lead to a moratorium on construction of new sources, which prompted the state's concerns about the federal government using what the lawyers claim is coercion to force compliance.

"The Clean Air Act should be interpreted to preclude EPA's threatened construction moratorium and to allow states up to three years to make prospective SIP revisions to include greenhouse gases," DeLaquil added.

EPA has not yet filed a response to the letter.

Legal experts have speculated that states could challenge on similar grounds any efforts by the federal government to withhold highway funding for failure to implement the Clean Air Act.

Speaking yesterday on an Environmental Law Institute conference call, David Weinberg, an environmental lawyer at Wiley Rein, said he envisions "lots of briefing on this issue" as the dust continues to settle on the Supreme Court ruling.

On the same call, James May, an environmental law professor at Widener University School of Law, said he expected courts to reject such claims.

"In my opinion, there's no coercion," he said.

Click here to read the letter.