The Supreme Court on Thursday temporarily blocked a Biden administration policy aimed at reducing interstate air pollution, preventing the policy from taking effect while lower court litigation continues.
In a 5-4 decision, the Supreme Court handed a victory to three Republican-led states – Indiana, Ohio and West Virginia – as well as U.S. Steel, pipeline operator Kinder Morgan and other steel and fossil fuel industry groups that had challenged the policy.
The challenge was prompted by the Environmental Protection Agency’s proposed rules in March 2023 that would apply to power plants and other industrial ozone sources in 23 upwind states after the states’ emission reduction plans were found to violate the so-called “good neighbor” provisions of the federal Clean Air Act.
The “good neighbor” rule is intended to help downwind states such as New York, Pennsylvania and Wisconsin comply with federal air quality standards.
Justice Neil Gorsuch, writing the majority opinion, found that the plaintiffs’ claims that the proposed EPA rule was “arbitrary” and “not reasonably explainable” were likely to succeed.
“The problem stems from how EPA determines which emissions are ‘contributing.'[d] “It will make it significantly more difficult for downwind states to meet national ozone standards,” Gorsuch wrote.
“What happens when many of the upwind states go off the plan, which is what happened? [rule] And maybe it only covers a fraction of the states and emissions the EPA projected?’ the judge asked, before pointing out:[A]In this discussion, the Government acknowledged that the cost-benefit analysis, which was conducted jointly across 23 states, cannot show with certainty whether the same results would be obtained and the same emission control measures would be implemented if it had been conducted, for example, in only one state.”
“There is probably an explanation for why the number or identity of participating states does not influence measures that maximize cost-effective downwind air quality improvements,” Gorsuch concluded, “but if there is an explanation, it is not stated in the final rule.”
The plaintiffs sought a stay of enforcement of the judgment from the U.S. Court of Appeals for the D.C. Circuit, but the court refused, leading to an appeal to the Supreme Court.
In February, The EPA argued The 10 states that have enacted Good Neighbor Plans are expected to see an 18% drop in power plant emissions by 2023.
Conservative Justice Amy Coney Barrett wrote a dissenting opinion, joined by liberal Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
“Courts are granting emergency relief in fact-intensive, highly technical cases without fully grappling with both the relevant law and the voluminous record,” she wrote.
“… In my view, the applicant is unable to satisfy the stay requirements. Most importantly, the applicant has not demonstrated a substantial likelihood of success.”
Barrett also emphasized “EPA’s statutory role in ensuring states meet air quality standards,” suggesting the court did not fully consider it in its decision.
The EPA said it was disappointed with the ruling but looked forward to defending the program as the litigation moves forward. An agency spokesman said Thursday’s court decision “sets aside the gains that the Good Neighbor program has already achieved in many states and territories.”
Separate challenges in lower courts have already led to a pause on enforcement of the plan in 12 of the 23 states, including West Virginia.
On January 16, the EPA released proposed rules to implement Good Neighbor programs in five more states: Arizona, Iowa, Kansas, New Mexico, and Tennessee.
With post wire
