Supreme Court Seems Ready to Block a Biden Plan on Air Pollution
OVERREACH: Several conservative justices were skeptical of the administration’s “good neighbor” rule on cross-state pollution, meant to protect downwind states from harmful emissions.
Supreme Court Seems Ready to Block a Biden Plan on Air Pollution
Several conservative justices were skeptical of the administration’s “good neighbor” rule on cross-state pollution, meant to protect downwind states from harmful emissions.
By Adam Liptak
Reporting from Washington
Feb. 21, 2024Updated 4:06 p.m. ET
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Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to again limit the Biden administration’s ability to protect the environment by temporarily stopping an effort by the Environmental Protection Agency to curtail air pollution that drifts across state lines.
Such a decision, expected by June, would be in keeping with recent rulings by the court, which has chipped away at the agency’s authority to address climate change and water pollution.
The new cases concerned the administration’s “good neighbor” plan. Under the proposal, which initially applied to 23 states, factories and power plants in Western and Midwestern states must cut ozone pollution that drifts into Eastern states.
The justices appeared to be divided along familiar lines on whether to block the plan, which directs states to take measures meant to reduce emissions that cause smog and are linked to asthma, lung disease and premature death.
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A ruling halting the plan would be provisional, as a challenge to it will continue to be litigated in an appeals court and could then return to the Supreme Court. The question for the justices was what should happen in the meantime. Even a temporary loss for the administration could suspend the plan for many months and maybe longer.
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The Clean Air Act gives states an opportunity to devise their own plans, subject to approval by the E.P.A. Last February, the agency concluded that 23 states had failed to produce adequate plans to comply with its revised ozone standards. The agency then issued its own plan.
A wave of litigation followed, and seven federal appeals courts blocked the agency’s disapproval of plans submitted by a dozen states, leaving 11 states subject to the federal rule.
Three states — Ohio, Indiana and West Virginia, along with energy companies and trade groups — challenged the federal plan directly in the United States Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to put the rule on hold while the litigation moved forward, the challengers asked the Supreme Court to step in.
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The application from the three states urged the justices to block the new rule in light of the appeals courts’ rulings, saying that “the federal plan is already a failed experiment” and “is but a shell of its original self.”
The E.P.A. responded that the provisional rulings on the state plans should not affect the national rule and that blocking it would have severe consequences.
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“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,” the agency’s brief said.
Judith N. Vale, a lawyer for states supporting the plan, described its practical impact at Wednesday’s argument.
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“In the good neighbor provision, Congress protected downwind states from pollution emitted in upwind states,” she said. “A stay of the good neighbor rule would undermine that statutory goal and the public interest by sending ozone pollution into downwind states, including Connecticut, Wisconsin and New York, that receive substantial pollution from the particular upwind states that are currently in the rule, including Ohio and Indiana.”
Much of the argument on Wednesday revolved around the question of whether the states that remained subject to the federal plan had been harmed by its shrinking geographical scope.
Justice Sonia Sotomayor said the remaining states were not made worse off by the exclusion of the others from the federal plan. “Nothing is changing in your costs,” she told Mathura J. Sridharan, Ohio’s deputy solicitor general.