The Supreme Court temporarily blocked a Biden administration policy meant to reduce cross-state air pollution Thursday, preventing it from taking effect while lower court litigation played out.
In a 5-4 decision, the justices handed a win to three Republican-led states — Indiana, Ohio and West Virginia — as well as US Steel, pipeline operator Kinder Morgan and other steel and fossil fuel industry groups that had contested the policy.
The Environmental Protection Agency triggered the challenge in March 2023 when it proposed a rule that would have applied to power plants and other industrial sources of ozone in 23 upwind states whose own emission-reduction plans were found to run afoul of the so-called “Good Neighbor” provision of the federal Clean Air Act.
The “Good Neighbor” rule is meant to assist downwind states such as New York, Pennsylvania and Wisconsin comply with federal air quality standards.
Writing for the majority, Justice Neil Gorsuch found that the plaintiffs were likely to succeed in their claim that the proposed EPA rule was “arbitrary” and not “reasonably explained.”
“The problem stems from the way EPA chose to determine which emissions ‘contribute[d] significantly’ to downwind States’ difficulty meeting national ozone standards,” Gorsuch wrote.
“What happens—as in fact did happen—when many of the upwind States fall out of the planned [rule] and it may now cover only a fraction of the States and emissions EPA anticipated?” the justice asked before noting: “[A]t argument the government acknowledged that it could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and command the same emissions-control measures if conducted for, say, just one State.”
“Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements,” Gorsuch concluded. “But if there is an explanation, it does not appear in the final rule.”
The plaintiffs had sought a stay of the rule from the DC Circuit Court of Appeals, which declined to grant one, prompting the Supreme Court appeal.
Back in February, the EPA claimed that power-plant emissions plummeted by 18% in 2023 in 10 states that had enacted the “good neighbor plan.”
Conservative Justice Amy Coney Barrett penned the dissent, joined by liberal Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson.
“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 wrote.
“…In my view, the applicants cannot satisfy the stay factors. Most significantly, they have not shown a likelihood of success on the merits.”
Barrett also underscored the “EPA’s statutory role in ensuring that States meet air-quality standards” and suggested that the court did not factor that enough in its decision.
The EPA said it was disappointed with the ruling but looked forward to defending the plan as the matter is further litigated. Thursday’s action by the court “will postpone the benefits that the Good Neighbor Plan is already achieving in many states and communities,” an agency spokesperson said.
Separate challenges in lower courts have already paused enforcement of the plan in 12 of the 23 states, including West Virginia.
On Jan. 16, the EPA issued a proposed rule to enforce the “Good Neighbor” plan in five more states: Arizona, Iowa, Kansas, New Mexico and Tennessee.
With Post wires
