The Supreme Court agreed on Dec. 20 to fast-track a challenge by Republican-led states and the energy industry to the U.S. Environmental Protection Agency’s (EPA) “good neighbor” rule that would crack down on states whose industries are said to be contributing to smog.
The court declined to block the regulation but stated in an unsigned order that oral argument will be heard in the case in February 2024. The specific date has not yet been determined.
In an emergency filing directed to Chief Justice John Roberts in October, Ohio Deputy Solicitor General Mathura Sridharan urged the court to take action immediately.
“The plan inflicts irreparable economic injuries on the States and others every day it remains in effect,” she wrote.
“Worse still, the plan is likely to cause electric-grid emergencies, as power suppliers strain to adjust to the federal plan’s terms. To prevent these harms, the Court should step in now.”
Over many objections, the EPA finalized its “Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality” regulation on June 5. The plan forces emissions standards on “23 upwind states,” Ms. Sridharan wrote.
“But due to a combination of litigation and interim rulemaking, a dozen of those States and over three-quarters of the emissions that the plan sought to regulate, are already exempt from the plan. Nonetheless, the EPA insists that its federal plan should still apply in the remaining States.”
The regulation “is already a failed experiment” that applies to fewer than half of the states and under a quarter of the emissions that it sought to regulate.
“In reality, the federal plan was always doomed; the EPA’s carefully timed gambit to work around the Clean Air Act’s structure of cooperative federalism was never going to work.”
Federal courts of appeal have stayed seven of the EPA’s disapprovals of state clean air plans, “and some did so before the federal plan was even finalized,” she wrote.
The EPA said in March that the rule would reduce ground-level ozone, which “can cause respiratory issues, aggravate asthma and other lung diseases, and lead to missed days of work or school, emergency room visits, and premature deaths.”
“These costly public health impacts can be especially harmful to children and older adults, disproportionately affecting people of color, families with low incomes, and other vulnerable populations,” the agency stated.
The rule would also “significantly cut smog-forming nitrogen oxide pollution from power plants and other industrial facilities in 23 states” and “improve air quality for millions of people living in downwind communities, including Connecticut.”
The rule largely benefits Connecticut, the EPA acknowledged.
“Southern [Connecticut] experiences the highest ground-level ozone levels in the eastern half of the U.S. The ozone recorded at air quality monitors in Southwest [Connecticut] comes almost entirely (90–95 percent) from out of state. Connecticut cannot reach attainment with EPA’s ozone air-quality standard without upwind emission reductions from sources in States south and west of Connecticut.”
Nitrogen oxide emissions from power plants contribute to ground-level ozone, otherwise known as smog, the EPA said in November.
“Exposure to ground-level ozone can cause respiratory issues, aggravate asthma and other lung diseases, and lead to missed days of work or school, emergency room visits, and premature deaths. These costly public health impacts can be especially harmful to children and older adults, disproportionately affecting people of color, families with low-incomes, and other vulnerable populations.”
The ozone-control program for power plants is currently being implemented in 10 states: Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin.
But courts have blocked the program in 12 states. Those states are Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia, the EPA said.
In a brief, U.S. Solicitor General Elizabeth Prelogar had urged the Supreme Court to allow the regulation to remain in force.
“[S]taying the Rule’s implementation would significantly harm the public interest,” she wrote.
“It would delay efforts to control pollution that contributes to unhealthy air in downwind States, which is contrary to Congress’s express directive that sources in upwind States must assume responsibility for their contributions to emissions levels in downwind States.
“By leaving air pollution caused by upwind States unabated, applicants’ requested extraordinary relief would impose negative health consequences and additional regulatory burdens on downwind States and their citizens—thus violating the central aim of the Good Neighbor Provision.”
The case actually consists of four separate applications, which the court ordered consolidated and heard together. They are Ohio v. EPA, Kinder Morgan Inc. v. EPA, American Forest and Paper Association v. EPA, and U.S. Steel Corp. v. EPA.
The Epoch Times reached out to Ms. Sridharan and New York Solicitor General Barbara Underwood for comment but had not received a reply from either as of press time.
Ms. Underwood is listed on the court docket as counsel of record for New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania, Wisconsin, the District of Columbia, the City of New York, and Harris County, Texas.
