July 13, 2024


In a ruling that court observers said was “truly extraordinary” and reached through “a procedural oddity,” the Supreme Court on Thursday blocked a federal plan to reduce air pollution that blow across state lines.

The 5-4 decision of the court’s conservative justices halts, for now, the Environmental Protection Agency’s “Good Neighbor” rule and the strict requirements for smoke nuisance emissions on power plants and other industrial sources. The court ruled that the EPA failed to “reasonably explain” its policy and stayed it pending the outcome of more than a dozen lawsuits.

Environmental advocates said the decision would leave millions of people breathing dirtier air this summer. They also worry that future challenges to federal policy may similarly “short circuit the normal process of judicial review” by appealing directly to the Supreme Court.

“What this shows to me is that this court is no longer neutral in cases involving environmental regulations,” Sam Sankar, senior vice president for programs at Earthjustice, told reporters Thursday. “It is actively skeptical of EPA and new environmental regulations.”

The Good Neighbor Plan was adopted to ensure compliance with a 2015 update to the Clean Air Act that tightened federal limits on ozone, a harmful pollutant and the primary component of smog. That update triggered a requirement for each state to submit a plan within three years detailing how it would reduce ozone-forming emissions from coal-fired power plants and heavy industry to protect downwind states. The law also required the EPA to develop a plan for states that failed to provide an adequate proposal.

Twenty-one states submitted plans indicating they would do nothing, while Pennsylvania and Virginia offered none at all. In March 2023, the EPA issued its own proposal for the 23 states dozens of lawsuits in federal courts across the country.

Ohio, Indiana and Virginia, along with pipeline company Kinder Morgan, US Steel, and others, in challenge the plan, argued that the EPA’s approach failed to consider the impact of a federal plan on each state. They also claimed that the steps needed to implement it could cause economic and operational damage, even if lower courts decide other lawsuits.

The justices, in a majority opinion written by Justice Neil Gorsuch, agreed. Gorsuch noted that the EPA’s plan to implement pollution reduction requirements, regardless of how many states are involved, has not been “reasonably explained.”

“The government declined to say with certainty that EPA would have reached the same conclusions regardless of which states were included,” he wrote.

But Judge Amy Coney Barrett argued in a strongly worded dissent that the agency “thoroughly explained” its methodology for calculating emissions reduction requirements, which depend not on the number of states included in the plan but on cost-effective measures which can be achieved at each source of pollution. Barrett also noted that the plaintiffs and the court could not identify how exactly the rule would differ if the number of states changed.

Sankar, who has closely watched the Supreme Court’s environmental decisions for 25 years, called the ruling “truly extraordinary” for two reasons. First, the EPA has in fact explained its reasoning in numerous documents. Second, the case ended up on the court’s emergency docket, a series that until recently largely reserved for minor procedural issues that were typically decided without the justices hearing oral arguments.

Zachary Fabish, senior attorney at the Sierra Club, told Grist that by hearing oral arguments and issuing such a consequential opinion on its emergency docket, the Supreme Court created a kind of “procedural oddity” in its decision-making. He pointed out that the case had yet to be decided by the US Court of Appeals for the District of Columbia Circuit, which is likely to rule on the legality of the Good Neighbor plan sometime next year. That means that even before the lower court’s decision, the Supreme Court has already weighed in — but without the benefit of extensive briefings, arguments and opinions from a lower court, he said.

Today’s ruling suggests that future environmental policies may face similar challenges in the emergency filing, Sankar said. “It’s really hard to say that there are any rules that aren’t subject to this kind of attack.”

Clean air advocates highlighted another glaring omission from the court’s opinion: It made no mention of the public health toll of the pollution in downwind states. Ozone forms in high temperatures and sunlight, making the summer months particularly conducive to its formation. As Fabish puts it, “The hotter the summer, the worse the ozone season” – a predictable sign as much of the country is under grilling relentless heat. Research has shown that ozone increases the risk of life-threatening conditions such as asthma attacks, especially among children, older adults, people who work outdoors, and people with respiratory and other illnesses.

Last summer, data collected by the EPA showed that from May to September, the Good Neighbor rule — then in effect in 10 states, including Illinois, New York and Ohio — successfully dismantled ozone-forming emissions by 18 percent. “Maintaining this rule threatens the progress that occurred last ozone season when the rule was partially in effect,” Fabish said.






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