WASHINGTON (CN) — The Supreme Court paused the government’s effort to reduce cross-state air pollution Thursday, allowing Republican-led states and industry groups to duck regulations while they challenge the new rules.
The justices ruled 5-4 that the Environmental Protection Agency had failed to fully address certain states' concerns regarding the “good neighbor” rule and that the would likely be found arbitrary and capricious in a full proceeding before the D.C. Circuit.
In 2015, the EPA established the good neighbor rule, also known as the Ozone Transfer Rule, to target “ozone-forming emissions of nitrogen oxides” from power plants and industrial facilities that travel downwind into neighboring states and affect those states’ air quality standards.
The agency then informed 23 states, primarily in the South and the Southwest, they would be subject to new air quality standards for ozone levels. While the states were allowed to propose their own plans to meet the new standards, the EPA concluded that the majority of the state plans would not achieve the government’s targets. The agency implemented federal plans for 21 states.
The EPA’s plans were challenged by many of the states, with a dozen securing court-mandated pauses to the plans. Ohio, Indiana and West Virginia took a different route, however, bringing a case to pause the good neighbor rule nationwide.
Justice Neil Gorsuch, a Donald Trump appointee, wrote for the majority Thursday that prior to those challenges, the states had raised concerns of a potential pitfall in the program if the EPA’s federal implementation plan (FIP) did not ultimately apply to all 23 states it intended.
“What happens — as in fact did happen — when many of the upwind states fall out of the planned FIP and it may now cover only a fraction of the states and emissions EPA anticipated?” Gorsuch wrote. “Does that affect the ‘knee in the curve’ or the point at which the remaining states might still ‘maximize cost-effective’ downwind ozone-level improvements?”
Even after two circuits issued stays of the EPA’s denial of four states’ plans — Texas, Louisiana, Arkansas and Missouri — the agency proceeded to issue its final federal plan. In response to the states’ concerns, the agency adopted a separability provision that even if states dropped out, the federal rule would still apply to those remaining.
Despite that addition, Gorsuch said, the EPA still failed to address whether the emissions-control measures it mandated would still be able to maximize cost-effective air-quality improvement if fewer states remained.
“Put simply, EPA’s response did not address the applicants’ concern so much as sidestep it,” Gorsuch said.
Justice Amy Coney Barrett, a Trump appointee, issued a dissent on which justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined. Barrett decried the majority’s failure to fully delve into the merits of the rule.
“The court today enjoins the enforcement of a major EPA rule based on an underdeveloped theory that is unlikely to succeed on the merits,” Barrett wrote. “In so doing, the court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.”
She warned that the majority’s opinion would result in unnecessary risk to millions of people living in states downwind from those involved in the suit.
“Given the number of companies included and the timelines for review, the court’s injunction leaves large swaths of upwind states free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years,” Barrett wrote.
She said the ruling runs contrary to the possibility that the EPA’s denial of the state plans could still be upheld and the federal plan found to cover all the original states.
“Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions,” 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 Supreme Court decided to hear arguments on the application — a rare move for cases on the shadow docket, which are typically decided without the benefit of oral arguments. This is only the third time in decades the court has agreed to hear arguments in an emergency appeal.
The good neighbor rule is a provision within the Clean Air Act targeting hazardous air pollutants like smog. Breathing in these toxins can lead to serious health conditions like asthma and cancer.
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