The Supreme Court on Wednesday appeared sympathetic to a group of states, companies, and trade associations seeking to temporarily block a rule issued by the Environmental Protection Agency to reduce air pollution from power plants and other industrial facilities in 23 states that do not want to adjust their emissions policies. During approximately 90 minutes of oral arguments, the court’s conservative justices voiced skepticism about the process that the EPA followed in implementing the rule, while the court’s liberal justices questioned the wisdom of putting the rule on hold before any lower court has had a chance to weigh in.
The law at the center of the case is known as the “good neighbor” provision of the Clean Air Act. It requires “upwind” states to reduce emissions that affect the air quality in “downwind” states.
In 2015, the EPA issued new air-quality standards for ozone pollution, which at high levels can cause major health problems. The new EPA standards triggered an obligation for states to submit plans to indicate both how they would comply with those standards and, in particular, how they would reduce emissions that affect the air quality in downwind states.
The dispute at the center of this case arises from the EPA’s decision last year to reject the plans submitted by 21 states, which had not proposed any changes to their emissions plans. One month after throwing out the state plans, the EPA published its own plan for those states, as well as for two other states that had not submitted plans.
Representing the states, Ohio Solicitor General Mathura Sridharan argued that the process by which the EPA had arrived at its federal plan was flawed. Specifically, she contended, 12 states had gone to court to challenge the EPA’s rejection of their plans, and several courts of appeals have put those rejections on hold, precluding the EPA from imposing its federal plan on those states.
But the EPA’s plan, Sridharan explained, relied on the assumption that all 23 states would participate in the federal plan. Once it became clear that not all states would be part of the plan, she told the justices, the EPA need to consider what the effect of less-than-full participation would have.
The EPA’s failure to do so, Sridharan continued, “has become consequential,” because the EPA’s plan “now regulates under half of the states and a quarter of the emissions that the EPA originally set out to regulate.”
Catherine Stetson, representing companies that own and operate natural gas pipeline engines, emphasized that “the purpose of the ‘good neighbor’ provision is to reduce the significant contribution that upwind states make to downwind states” – not simply to protect downwind states. Therefore, she reasoned, the EPA should have examined whether, with only 11 states subject to the federal plan, “there would still be a significant contribution” to downwind air quality.
Stetson added that, if the rule is allowed to remain in effect, it could mean “hundreds of millions if not billions of dollars in costs over the next 12 to 18 months.” By contrast, she suggested, there is not a “very, very significant downwind problem” but instead a “minuscule” one.
A decision in this case is expected by summer.