GenOn REMA, LLC owns Portland Generating Station, (collectively “GenOn”), a Pennsylvania electricity generating facility, run by coal, located across the Delaware River from New Jersey. A mere 500 feet away, New Jersey suffered from high levels of sulfur dioxide emissions resulting from GenOn.
Pursuant to the Clean Air Act, New Jersey filed a claim with the EPA. Finding that GenOn’s emissions of sulfur dioxide contributed to interstate air pollution, the EPA issued a ruling (“Portland Rule”), that required GenOn to decrease emissions. GenOn challenged the EPA’s Portland Rule on two grounds: (1) the EPA did not have the authority to issue the rule; and (2) the rule was arbitrary and capricious. The Third Circuit did not agree.