A coalition of Republican-led states and the energy industry have asked the Supreme Court to block the EPA’s “good neighbor” rule that would crack down on states whose industries are said to be contributing to smog.
Ohio Deputy Solicitor General Mathura Sridharan urged the court to take action immediately.
“The plan inflicts irreparable economic injuries on the States and others every day it remains in effect,” she wrote in the application.
“Worse still, the plan is likely to cause electric-grid emergencies, as power suppliers strain to adjust to the federal plan’s terms. To prevent these harms, the Court should step in now.”
The federal Clean Air Act lays out a competitive-federalism scheme in which the states and the EPA share responsibility for the nation’s air quality. The statute allows each state to come up with its own plan to prevent emissions within its borders from significantly affecting air quality in other states, Ms. Sridharan wrote.
The EPA reviews each state plan, but the review is supposed to be deferential toward the state concerned. The law provides that “if a State’s plan meets statutory requirements, the EPA ‘shall approve’ it, regardless of whether the EPA has a better idea for how to accomplish the Act’s goals,” she wrote.
In other words, “the EPA has power to impose a federal plan only if a State fails to submit a statutorily compliant plan,” but the agency “views its role much differently.”
At the beginning of last year, the agency said it would reject the air quality plans of about half of the country’s states and revealed its own federal plan that favored a nationwide approach to emissions reductions.
Over many objections, the EPA finalized its “Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality” regulation on June 5. The plan forces emissions standards on “23 upwind states,” Ms. Sridharan wrote.
“But due to a combination of litigation and interim rulemaking, a dozen of those States and over three-quarters of the emissions that the plan sought to regulate, are already exempt from the plan. Nonetheless, the EPA insists that its federal plan should still apply in the remaining States.”
The Supreme Court should stay the rule because the states challenging it are likely to prevail in court on the merits, Ohio’s deputy solicitor general wrote.
The regulation “is already a failed experiment” that applies to fewer than half of the states and under a quarter of the emissions that it sought to regulate.
“In reality, the federal plan was always doomed; the EPA’s carefully timed gambit to work around the Clean Air Act’s structure of cooperative federalism was never going to work.”
Federal courts of appeal have stayed seven of the EPA’s disapprovals of state clean air plans, “and some did so before the federal plan was even finalized,” she wrote.
The EPA defended the rule in March, saying in a press release that it would reduce ground-level ozone, which “can cause respiratory issues, aggravate asthma and other lung diseases, and lead to missed days of work or school, emergency room visits, and premature deaths.”
“These costly public health impacts can be especially harmful to children and older adults, disproportionately affecting people of color, families with low incomes, and other vulnerable populations,” the agency stated.
The rule would also “significantly cut smog-forming nitrogen oxide pollution from power plants and other industrial facilities in 23 states“ and ”improve air quality for millions of people living in downwind communities, including Connecticut.”
The rule largely benefits Connecticut, the EPA acknowledged.
“Southern [Connecticut] experiences the highest ground-level ozone levels in the eastern half of the U.S. The ozone recorded at air quality monitors in Southwest [Connecticut] comes almost entirely (90–95 percent) from out of state. Connecticut cannot reach attainment with EPA’s ozone air-quality standard without upwind emission reductions from sources in States south and west of Connecticut.”
EPA New England Regional Administrator David W. Cash said at the time, “Air pollution doesn’t stop at the Connecticut state line.”
“[The federal rule will help] our state partners meet stronger air quality health standards within and beyond their borders, saving lives and improving public health in impacted communities across the United States. This is especially important in communities that have been overburdened by pollution for decades,” he said.
Republicans on Capitol Hill have criticized the rule.
Sen. Shelley Moore Capito (R-W.Va.) said earlier this year that the regulation is “targeting states that are energy suppliers in our nation and our industrial heartland.”
Other emergency applications seeking to stay the rule are also pending in the Supreme Court.
Kinder Morgan Inc. v. EPA (court file 23A350) and American Forest and Paper Association v. EPA (court file 23A351) were both filed on Oct. 13.
And at least 17 petitions for certiorari, or review, of the EPA rule are currently before the Supreme Court, according to Ohio’s application. A petition moves forward to the oral argument stage if at least four of the nine justices vote to grant it.
Ohio, Indiana, and West Virginia asked the U.S. Court of Appeals for the District of Columbia Circuit, which handles many regulatory matters, to halt the federal rule, but it refused to do so.
The Epoch Times reached out to the U.S. Department of Justice for comment but received none by press time.
It’s unclear when the Supreme Court will act on the emergency application.
