The problem with air pollution is that it tends to travel – blowing downwind for hundreds of kilometers, entering the lungs of people who live far from the source. Nitrogen oxides emitted by coal-fired power plants, for example, can travel across state lines and react with other chemicals in the atmosphere to form ozone, a powerful pollutant and the main ingredient in smog. Last March, the federal Environmental Protection Agency issued a rule to curb those downward ozone pollutants in 23 states. But in the months since, states and fossil fuel industry groups have done just that filed dozens of lawsuits to block the plan. As a result of this ongoing litigation, the agency’s ozone pollution reduction rule, the “Good Neighbor” planhas been suspended in 12 states, including Kentucky, Texas and Utah.
These legal battles have now reached the Supreme Court. On Wednesday, as supporters of the rule demonstrated outside, lawyers representing the state of Ohio, the oil and gas pipeline company Kinder Morgan, the American Forest and Paper Association, and the manufacturing company US Steel, among others, delivered oral arguments before the Supreme Court. Court. The groups want the court to grant what’s called an “emergency stay,” which would halt the Good Neighbor plan altogether — even in the 11 states that already implement the rule — while lawsuits play out in lower courts.
The justices won’t have a final say on the legitimacy of the EPA’s rule — that’s up to the U.S. Court of Appeals for the District of Columbia Circuit, which currently grapples with 18 related lawsuits to that question. But legal experts say that Wednesday’s oral arguments appear to indicate that the Supreme Court may let the validity of the Good Neighbor plan prevail in its decision anyway, with unprecedented public health consequences for state residents.
“The petitioners are trying to get the Supreme Court to weigh the merits of this procedural stay application,” Zachary Fabish, senior attorney with the Sierra Club, told Grist based on what he heard in court Wednesday. “And the people who pay downwind in those states are paying the price for public health.”
A few justices commented on the plaintiffs’ unusual choice to argue before the Supreme Court before their pending litigation was decided by the DC Circuit. The groups even admitted during oral arguments that they requested a delayed briefing from the lower court so they could first present their case to the Supreme Court.
“It’s pretty extraordinary, I think, to ask the court to decide this matter when you haven’t even lost below in terms of what’s before the D.C. Circuit,” Judge Ketanji Brown Jackson told the plaintiffs. “So I’m trying to understand what the emergency is that warrants Supreme Court intervention at this stage.”
That emergency, state and industry plaintiffs argue, mostly boils down to the cost of complying with the EPA’s ozone reduction plan. In 2015, the EPA updated the federal air quality standard for ozone, setting strict limits for that pollutant nationwide. Under federal law, each state was required to submit a plan within three years of the updated standard that describes how it will reduce the amount of ozone pollution that blows downwind to other states. If they failed to do so, or submitted inadequate plans, the EPA was obligated under the Clean Air Act to enforce the Good Neighbor Rule to reduce downwind pollution in those states. By February 2023, the EPA rejected 21 states’ plans; two more, Pennsylvania and Virginia, filed none.
In March, the agency issued the Good Neighbor plan for those 23 states, a rule that plaintiffs argued levies were an unfair burden on states like Ohio and Indiana; oil and gas companies; and heavy industries. “To comply with an illegal federal rule, we are spending tremendous amounts, both the states as well as our industries,” Ohio Deputy Attorney General Mathura Sridharan argued.
But Judith Vale, a deputy attorney general for New York who argued in favor of the Good Neighbor plan, noted that the EPA’s rule helps address inherent cost imbalances between upwind and downwind states. In many cases, power plants and industrial facilities in exciting states in the South and Midwest will simply have to turn on existing pollution controls to achieve compliance. Downstream states like Connecticut and Wisconsin, on the other hand, must reduce their own pollution while also compensating for pollutants that blow into their jurisdiction.
Often, those states “have already exhausted many of the cheaper strategies,” Vale said. “So they have to turn to more and more expensive strategies to find any further cuts.”
While Jackson and other liberal justices appeared to question challenges to the Good Neighbor plan, conservative justices such as Justice Brett Kavanaugh appeared more sympathetic. Responding to a point raised by Malcolm Stewart, a deputy attorney general at the U.S. Department of Justice, that halting the air pollution plan would disproportionately harm states, Kavanaugh agreed, but added that “there is also the shares of the exciting states and the industry are. ,” concluding that both sides suffered irreparable damage.
Fabish noted that the court’s decision to even schedule oral arguments for this case is highly unusual. The request for the emergency stay came on the Supreme Court’s “shadow docket”, a series of cases which, until recently, involved less consequential cases and were decided without oral arguments, extended hearings or even explanations from the judges. But by asking for briefings and an oral argument, the court created a kind of “process conundrum” for itself, Fabish said. While the justices have some material on which to base a ruling, he noted that they lack most of the evidence used in a typical case, such as extensive briefs, documents and arguments. The justices also lack detailed opinions from a lower court, as the DC Circuit has yet to issue a decision.
All those factors, in addition dozens of pending lawsuits related to the Good Neighbor rule in courts across the country creates great uncertainty about how and when the Supreme Court will rule on this application, Fabish said. Richard Lazarus, an environmental law professor at Harvard Law School, tells Harvard Law Today that anywhere from four to six justices could agree to stop the rule, citing Kavanaugh, Neil Gorsuch, Clarence Thomas and Samuel Alito as likely votes to do so. Meanwhile, other judges have worried aloud whether this case could encourage future plaintiffs to use the shadow docket as a venue to challenge environmental regulations.
“I mean, the Supreme Court’s emergency docket is certainly not a viable alternative for every party that believes they have a meritorious claim against the government and don’t have to abide by a rule while challenging it,” Justice said. Jackson said.
