Supreme Court justices lean toward EPA critics in ‘good neighbor’ battle

By Pamela King, Sean Reilly | 02/21/2024 01:30 PM EST

Justice Brett Kavanaugh, who struck down an earlier EPA plan for cross-state pollution, played a leading role in Wednesday’s argument.

The Supreme Court.

The Supreme Court. Mariam Zuhaib/AP

The Supreme Court appears likely to rule against EPA in a fight to delay the federal agency’s rules for smog-forming pollution that wafts across state lines.

During oral arguments Wednesday in an almost full courtroom, the justices grilled EPA on its alleged failure to explain how its “good neighbor” rule for 23 states could change if the agency froze those requirements for some participants.

Taking a leading role in the questioning was Justice Brett Kavanaugh, whose familiarity with good neighbor requirements dates back to his tenure as a judge of the U.S. Court of Appeals for the District of Columbia Circuit.


In 2012, he was the lead author of a 2-1 D.C. Circuit opinion striking down an earlier good neighbor plan. Two years later, the Supreme Court largely reversed his ruling in a 6-2 decision written by late Justice Ruth Bader Ginsburg.

During Wednesday’s arguments in Ohio v. EPA, Kavanaugh, a member of the court’s conservative supermajority whose vote often determines the outcome of cases, prodded the agency on claims from red states, power plants and gas pipelines that they did not have sufficient opportunity to weigh in on the nuances of the good neighbor rules.

“One of the complaints they have is whether they’re likely to succeed in saying that the rule was not adequately explained,” Kavanaugh said to Malcolm Stewart, deputy solicitor general who argued on behalf of EPA.

Kavanaugh said earlier in the argument that EPA had received feedback that changes to its plans for polluting states were problematic — but didn’t explain its reasoning for those thresholds.

“That’s their burden, I think, to not be arbitrary and capricious,” he said to Catherine Stetson, a partner at the law firm Hogan Lovells representing the pipeline company Kinder Morgan and other industry critics of EPA’s rules.

Under the Clean Air Act’s good neighbor provision, states are barred from allowing industrial emissions that make it harder for downwind areas outside of their borders to meet national ambient air quality standards.

EPA intervened after finding that the states weren’t living up to the act’s imperatives to help bring large parts of the United States into compliance with a 2015 ground-level ozone standard.

Ozone, the main ingredient in smog, is a lung-damaging compound that’s linked to asthma, higher odds of stillbirth and early death. Almost nine years after EPA issued the 70 parts per billion standard, about 115 million people — more than one-third of the nation’s population — live in areas that are still flunking it.

Particularly in the Northeast, regulators blame upwind emissions beyond their control for much of their inability to comply.

But EPA’s good neighbor rule currently has taken hold in only 11 states. In a complex prelude to the stay request, EPA froze implementation in the other 12 because of adverse federal appellate court rulings stemming from the agency’s rejection of state good neighbor plans that preceded the imposition of the federal alternative.

In October, Ohio, Indiana and West Virginia then sought Supreme Court intervention after the D.C. Circuit declined to grant a stay, arguing that EPA’s rule is unreasonably costly and could lead to power and heating shortages.

Challengers have only asked the justices to delay implementation of EPA’s good neighbor plan, but a ruling against the agency could cause legal trouble for the Biden administration’s broader efforts to clean the air and shift power plants away from coal-fired power.

Chief Justice John Roberts, a moderate member of the conservative majority, appeared sympathetic to criticisms that EPA had not conducted the proper due diligence in explaining the changes to its good neighbor plan.

“It’s something new” that EPA’s plan has dropped from 23 to 11 states, Roberts said to Stewart.

The chief justice continued: “In terms of why it’s necessary to look at this hearing, I think it’s an important question, is because EPA will not look at it until after the hundreds of billions of dollars of costs are incurred.”

What is an emergency?

Liberal justices expressed concern Wednesday that the Supreme Court was not the appropriate place for EPA critics to raise their claims.

Ohio v. EPA arrived at the court through its emergency — or “shadow” — docket. While the court resolves many of its emergency disputes in short, unexplained orders — some of which have been issued late at night — the justices in recent years have taken to hearing expedited arguments on some of the docket’s higher-profile submissions.

Justice Ketanji Brown Jackson urged Ohio Deputy Solicitor General Mathura Sridharan, who represented upwind states, to explain how their plea to the Supreme Court constitutes an emergency.

“I’m worried about the standards that this court needs to take into account when deciding whether to entertain these kinds of motions,” Jackson said.

Sridharan responded that her clients would have to spend “immense sums” of money to put themselves on track to meet EPA’s compliance dates.

Jackson pushed Sridharan on why the parties had gone straight to the Supreme Court instead of seeking relief from the D.C. Circuit.

Later in the argument, Stetson said they had asked for expedited briefing in the lower court but didn’t get the briefing schedule they wanted.

Jackson noted that Supreme Court emergency stay orders are rare and aren’t a viable option for other parties that require relief.

“Can you help me to understand what the burden should be in this very unique situation?” Jackson said.

The broader legal fight

While EPA has been regulating cross-country emissions for more than a quarter-century, the current good neighbor rule — and EPA’s earlier rejection of the state plans — has triggered an unprecedented wave of litigation across more than a half-dozen circuit courts.

EPA is arguing that the challenges to its state plan disapprovals belong before the D.C. Circuit because the separate EPA rule encompassing most of those turndowns is national in scope.

Apart from issuing stays, however, none of the other circuit courts has yet ruled on the merits of the disapproval rule.

Environmental groups view the Supreme Court’s willingness to wade in at this point as another worrisome intrusion into policy issues traditionally handled by the executive branch or Congress. From 2023 to 2042, for example, EPA predicts that the good neighbor rule’s annual compliance costs will be less than $1 billion, or a fraction of the health gains resulting from less pollution.

“Given the fact that the court does not possess expertise in either health or economics, it would be extraordinary hubris for them to make a ruling that would deny those benefits to the general population of this country,” said Dr. Brian Moench, president of Utah Physicians for a Healthy Environment, during a conference call with reporters last week.

EPA has meanwhile proposed adding another five states to the 23 covered by the original good neighbor framework. The deadline for feedback on that proposal is May 16. A virtual public hearing is scheduled for March 4.

For the states where the current plan has been able to take effect, EPA maintains that it is working as intended.

In 2023 emissions data released last week, EPA reported that power-sector releases of smog-forming nitrogen oxides fell 9 percent nationwide during last year’s summertime ozone season in comparison with the same period in 2022.

Among the states that implemented the good neighbor framework, however, the drop was 18 percent.