EPA’s smog control plan faces fresh challenge from states

By Sean Reilly | 10/21/2024 04:27 PM EDT

While the Supreme Court usually takes few appeals, the new bid may have greater odds given a recent decision regarding challenges to EPA rules.

The Marshall Steam Station coal power plant operates near Mooresville, North Carolina.

Emissions rise from the Marshall Steam Station coal power plant near Mooresville, North Carolina, on March 3. EPA's "good neighbor" rule aimed at cutting smog-forming pollution that crosses state lines has faced an onslaught of legal challenges. Chris Carlson/AP

Ohio and other states are reupping their Supreme Court fight over an EPA smog control plan after scoring a victory in a separate case.

With a petition filed Friday, the states asked the high court to weigh in on a lower court’s decision last month to allow EPA to revisit the “good neighbor” rule that the justices, by a 5-4 majority, stayed in June.

Under a 1943 precedent, Ohio Attorney General Dave Yost (R) wrote in the petition, the administrative record is limited “to specified materials compiled from rule proposal to finalization that support the EPA’s bases for its action.”

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But in granting EPA’s request for a voluntary remand of the plan, they added, the U.S. Court of Appeals for the District of Columbia Circuit last month “acquiesced” in allowing the agency “to supplement the administrative record without affording so much as an opportunity for affected parties to comment on the additions to the record.”

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