The Supreme Court voted 5–4 on June 27 to temporarily put on hold the U.S. Environmental Protection Agency’s (EPA’s) “good neighbor” rule that cracks down on states whose industries are said to be contributing to smog.
Justices Amy Coney Barrett, Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson dissented.
The Supreme Court held that the emissions-reduction standards established by a federal plan would probably cause irreversible harm to several of the affected states, unless the plan was stayed until it could be reviewed by the lower courts.
The nation’s highest court stayed the plan, pending review by the U.S. Court of Appeals for the District of Columbia Circuit.
Led by Ohio, the states said the regulation was costly and could lead to blackouts, while the EPA said the rule was urgently needed to fight air pollution.
The coalition of states also said the EPA’s plan is an illegal overreach that undermines the principles of the federal Clean Air Act, which allows states leeway to propose their own air pollution control measures.
The plan is reportedly in effect in 11 states; courts have blocked it in 12 states.
The case, known as Ohio v. EPA, came as the Supreme Court has become increasingly reluctant in recent years to side with the EPA in legal battles.
In 2022, the nation’s highest court held in West Virginia v. EPA that the federal Clean Air Act doesn’t give the EPA widespread power to regulate carbon dioxide emissions, which a popular theory says contributes to global warming.
In 2023, in Sackett v. EPA, the court voted to rein in the power of the EPA to regulate wetlands.
In the case at hand, on Dec. 20, 2023, the court declined to block the smog regulation itself but agreed to expedite consideration of the case.
Oral arguments were heard on Feb. 21 in Ohio v. EPA. The same hearing also covered three other applications filed against the EPA by Kinder Morgan Inc., the American Forest and Paper Association, and U.S. Steel Corp., which were consolidated.
The EPA finalized its “Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality” regulation on June 5, 2023, despite the objections of states and energy companies.
The plan imposes emissions standards on 23 “upwind” states.
According to the agency, cross-state air pollution, also called interstate air pollution or transported air pollution, is emitted at an “upwind” location and then blown to a “downwind” location.
The plan is supposed to address the interstate effect of air pollution under the Clean Air Act’s Good Neighbor Provision in 42 U.S.C. Section 7410(a)(2)(D), which requires upwind states to make sure their emissions don’t hinder the ability of downwind states to meet federal air-quality standards.
The EPA toughened ozone standards and ordered states to file updated state implementation plans, or SIPs, demonstrating how they would comply with the new standards.
This new top-down regulation sparked opposition in many states, which are litigating against it.
Courts have blocked the program in 12 states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia, according to the EPA.
In Ohio v. EPA, the District of Columbia Circuit previously declined to stay the Good Neighbor Plan while litigation was proceeding.
Enforcement Blocked
In the new opinion, the Supreme Court blocked enforcement of the EPA rule at least until the circuit court reviews the case.Justice Gorsuch’s opinion was joined by Justices Clarence Thomas, Samuel Alito, and Brett Kavanaugh, and Chief Justice John Roberts.
The Clean Air Act is supposed to be about states and the federal government working together to improve Americans’ air quality, Justice Gorsuch wrote.
The law assigns states “primary responsibility” for developing plans to achieve air quality goals; however, if a state fails to prepare a legally compliant plan, the federal government is sometimes allowed to step in and assume that authority for itself, he wrote.
The federal government said it would reject more than 20 states’ plans for controlling ozone pollution and would impose its own uniform federal plan, so this case is about whether, in adopting that plan, the government complied with the Clean Air Act, he continued.
The Supreme Court ruled in Train v. NRDC (1975) that because the states have primary responsibility for writing compliance plans, the EPA has “no authority to question the wisdom of a State’s choices of emission limitations,” the justice noted.
As long as an SIP complies with the Act, the agency “shall approve it” within 18 months of its submission, but if an SIP falls short, the EPA “shall” issue a federal implementation plan, or FIP, for the noncompliant state unless the state corrects its SIP first, Justice Gorsuch wrote, citing another precedent.
At one point, several states and industry groups challenged the FIP in the District of Columbia Circuit.
The states said the Act allows the courts to reverse any action taken regarding an FIP that is “arbitrary” or “capricious” and argued that the EPA’s decision to apply the federal plan to them even after many other states had dropped out met that standard for reversal, he wrote.
“Because each side has strong arguments about the harms they face ... our resolution of these stay requests ultimately turns on the merits and the question [of] who is likely to prevail at the end of this litigation,” he wrote.
“We agree with the applicants that EPA’s final FIP likely runs afoul of ... long-settled standards.”
In her dissenting opinion, Justice Barrett suggested that the Supreme Court’s order in this case was ill-considered.
“Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions,” Justice Barrett wrote.
“Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”
The court’s order “leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years” while the case is being litigated, she wrote.
