The Supreme Court on Wednesday sided with two Republican states on a venue question that could hamper future EPA efforts to combat dangerous air pollution that crosses state lines.
The case pertained to a crucial procedural underpinning of the agency’s 2023 federal “good neighbor” plan that sought to strengthen limits on smog-forming emissions from coal-fired power plants and other industries in 23 states.
In its 8-0 opinion, the high court found that states can contest EPA’s earlier decision to first disapprove state “good neighbor” plans in regional appellate courts instead of the U.S. Court of Appeals for the District of Columbia Circuit, which is the usual venue for bringing challenges to nationally applicable rules.
Particularly in Republican-leaning areas, those regional courts are often seen as friendlier to state and industry interests.
The Supreme Court’s opinion, written by Justice Clarence Thomas, overturns a ruling by the 10th U.S. Circuit Court of Appeals in litigation brought by Oklahoma and Utah. Justice Samuel Alito recused himself from the opinion without explanation.
The ruling’s immediate repercussions may be limited, given that the high court stayed implementation of the federal plan last June and President Donald Trump’s administration now plans to repeal it.
But it could complicate any future bid by EPA to comply with the Clean Air Act provision that bars states from allowing industrial pollution that undercuts compliance in downwind areas beyond their borders, said Victor Flatt, a professor in Case Western Reserve University School of Law.
“It is just getting harder and harder to do it,” Flatt said. The court’s Wednesday ruling means that EPA cannot tackle a nationwide good neighbor plan “along with any other state non-compliance issues at the same time,” he added.
The high court had held joint oral arguments in March on both the good neighbor litigation and a separate tangle of lawsuits surrounding the proper venue for challenges to biofuel blending mandates. In an opinion also issued Wednesday in that latter case — known as Environmental Protection Agency v. Calumet Shreveport Refining L.L.C. — the high court concluded that those lawsuits belong before the D.C. Circuit.
The justices came to the opposite conclusion in the good neighbor litigation.
Smog is mostly made up of ground-level ozone, a lung irritant that is linked to asthma and other respiratory ills, as well as premature death.
The federal plan was intended to help enforce EPA’s 2015 decision to tighten the national ozone standard from 75 parts per billion to 70 ppb. A decade later, more than 115 million people live in cities and communities that are still flunking the stricter limit, with upwind emissions shouldering a significant share of the blame.
Not long before releasing its good neighbor plan in March 2023, however, EPA rejected 21 state alternatives in a single omnibus rule. Those mass rejections were the prerequisite to issuance of the federal alternative; EPA under President Joe Biden maintained that the disapproval rule was nationally applicable, meaning that any challenges had to go to the D.C. Circuit.
In Wednesday opinion, Thomas disagreed, writing that those disapprovals were based on factual determinations “particular to the state at issue” and thus should be heard by regional circuit courts.
States and industry challengers had already brought lawsuits contesting the disapproval rule in those regional courts, leading to stays that effectively halted implementation of the federal plan in 12 of the 23 states.
In issuing its own stay last June, a 5-4 majority on the Supreme Court found that EPA had not then reasonably explained how the plan would work after implementation was frozen in more than half of the states initially covered.
