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Supreme Court hears arguments on power plant emissions, immigration

The US Supreme Court [official website] heard oral arguments [day call, PDF] Tuesday in two cases. In the consolidated cases of Environmental Protection Agency v. EME Homer City Generation and American Lung Association v. EME Homer City Generation [transcript, PDF; JURIST report] the court is considering the authority of the Environmental Protection Agency (EPA) [official website] under the Clean Air Act [text, PDF] to issue a regulation limiting power plants' emissions that cross state lines. The US Court of Appeals for the District of Columbia Circuit ruled [JURIST report] last August that the EPA overstepped its authority because its regulation, known as the Transport Rule, did not square with Congress' intention to have individual states, rather than the EPA, set emissions policies to meet federal standards. The questions before the court are (1) whether the court of appeals lacked jurisdiction to consider the challenges on which it granted relief; (2) whether states are excused from adopting state implementation plan (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; and (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.

In Mayorkas v. Cuellar de Osorio [transcript, PDF] the court will decide (1) whether 8 USC § 1153(h)(3) of the Immigration and Nationality Act (INA) [text] unambiguously grants relief to all aliens who qualify as "child" derivative beneficiaries at the time a visa petition is filed but age out of qualification by the time the visa becomes available to the primary beneficiary; and (2) whether the Board of Immigration Appeals (BIA) [official website] reasonably interpreted § 1153(h)(3). The INA permits US citizens and lawful permanent resident aliens to petition for certain family members to obtain visas to immigrate to the US or to adjust their status in the US to that of a lawful permanent resident alien. The family member sponsored by the petitioner is known as the primary beneficiary. The primary beneficiary's "spouse or child" may be a derivative beneficiary of the petition, "entitled to the same status[] and the same order of consideration" as the primary beneficiary. Section 1153(h)(3), grants relief to certain persons who reach age 21 and therefore lose "child" status after the filing of visa petitions as to which they are beneficiaries. Here the US Court of Appeals for the Ninth Circuit held [opinion] that "the plain language of [§ 1153(h)] unambiguously grants automatic conversion and priority date retention to aged-out derivative beneficiaries. The BIA's interpretation of the statute conflicts with the plain language of [§ 1153(h)], and it is not entitled to deference."

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