Scalia Opinion Dismisses Northeast States’ Suit to Cut Midwest Pollution

In one of his last opinions from the appellate bench, Supreme Court Justice Antonin Scalia joined two other judges Thursday in ordering dismissal of a lawsuit by seven Northeastern states seeking to cut air pollution in the Midwest.

The opinion of the U.S. Circuit Court of Appeals panel, written by Scalia, ruled that the Environmental Protection Agency does not have to tell Midwestern states to reduce air pollution to cut acid rain damage in Canada.

The opinion was in the mainstream of several other Scalia cases in that it upheld the discretion of a governmental agency. On the facts presented, action “is within the agency’s discretion and not subject to judicial compulsion,” he wrote.

Scalia, confirmed Wednesday night by the Senate as a high court justice, passed over scientific questions in the suit to focus on the general requirement that agencies may not make rules without public notice and without giving affected parties a chance to comment.

The suit was filed by New York, New Jersey, Connecticut, Massachusetts, Maine, New Hampshire and Vermont. They were joined later by Rhode Island and the province of Ontario, and a supporting brief was filed by Minnesota.