States seek Supreme Court intervention on smog plan split

By Sean Reilly | 04/03/2024 01:36 PM EDT

The petition marks the latest addition in a torrent of litigation that has thus far undercut EPA’s ability to enforce the good neighbor rule.

People walk out of the Supreme Court.

People walk out of the Supreme Court on Feb. 21. Kevin Dietsch/Getty Images

As the Supreme Court ponders a high-stakes bid to freeze implementation of EPA’s latest good neighbor smog control plan, two Republican-run states are now asking the justices to tackle a crucially intertwined jurisdictional issue.

Utah and Oklahoma say in a petition filed this week that the 10th U.S. Circuit Court of Appeals erred in recently transferring legal challenges to EPA’s earlier disapprovals of state good neighbor plans to the U.S. Court of Appeals for the District of Columbia Circuit.

The D.C. Circuit is the usual venue for litigation over “national applicable” Clean Air Act regulations. Lawyers for Utah and Oklahoma say that the Denver-based 10th Circuit’s decision conflicts with rulings from four other circuit courts, which found those disapprovals were regional matters and thus fell within their purview.


“The Tenth Circuit wrongly indulged EPA’s decision to consciously elevate form over substance,” the attorneys wrote. “Congress directed that state plan approvals and disapprovals — each of which reflect ‘intensely factual determinations’ unique to each state — belong in regional circuits.” The Supreme Court’s review “is needed to resolve the split,” they said.