This story was updated at 4:37 p.m. EDT.
The Supreme Court dealt another setback to the Biden administration’s environmental agenda with a 5-4 ruling freezing further implementation of EPA’s latest crackdown on smog-forming pollution that crosses state lines.
Led by Neil Gorsuch, most justices in the court’s conservative wing agreed with Republican states and a variety of industries that argued the “good neighbor” rule no longer worked after lower courts froze implementation of new industrial pollution control requirements in 12 of the 23 states originally covered.
EPA’s response did not address that concern “so much as sidestep it,” Gorsuch wrote in the majority opinion.
Dissenting was Justice Amy Coney Barrett, joined by the court’s three liberal members. In her rebuttal, Barrett wrote that “EPA would have promulgated the same plan even if fewer States were covered.” She also questioned the court’s rationale for taking the case under its “emergency docket,” which does not require a full round of briefs.
Almost two months into this year’s summertime ozone season, the high court’s decision now blocks EPA from enforcing stricter curbs on power plants and other industries in the 11 other states while the U.S. Court of Appeals for the District of Columbia Circuit weighs a separate round of legal challenges.
The D.C. Circuit had earlier denied stay requests. In a potentially ominous sign for EPA, however, Gorsuch wrote that the challengers are “likely to succeed on a claim that the Good Neighbor Plan is ‘arbitrary” or “capricious.’”
The court’s decision, issued Thursday, arrived more than four months after the justices had held oral arguments on the stay requests from Ohio, Indiana and West Virginia, as well as representatives from the power sector, paper industry and other businesses.
In a statement, EPA spokesperson Tim Carroll reiterated the agency’s belief that the plan is “firmly grounded” in its Clean Air Act authority and voiced dismay about the broader ramifications.
While the freeze is in effect, Americans will be exposed to higher levels of ground-level ozone, “resulting in costly public health impacts that can be especially harmful to children and older adults and disproportionately affect people of color, families with low incomes, and other vulnerable populations,” the spokesperson said.
Under the act’s good neighbor provision, states are barred from permitting pollution from power plants and other industries that makes it harder for downwind areas outside their borders to meet the National Ambient Air Quality Standards for ground-level ozone, a lung irritant that is the main ingredient in smog and is tied to a variety of respiratory ills.
Because state regulators are often reluctant to confront local industries, EPA has repeatedly stepped in over the years to enforce that prohibition. The plan issued early last year was intended to promote compliance with the agency’s 2015 ozone standard of 70 parts per billion.
Almost nine years later, 115 million Americans live in areas that still fail to meet that limit. Particularly along the East Coast, state regulators blame upwind emissions from the South and Midwest for a significant part of their compliance problems.
Ozone is formed by the reaction of nitrogen oxides (NOx) and volatile organic compounds in sunshine. Both classes of pollutants are tied to the production and consumption of fossil fuels.
EPA imposed the federal plan after concluding that the state alternatives fell short of the Clean Air Act’s requirements. For the first time, the agency expanded the plan’s purview to cover industries such as natural gas pipeline operators and steel mills, as well as the power sector. Its geographic reach was also extended to California and several Mountain West states.
If fully in effect by the summer of 2026, the new regimen is expected to cumulatively cut summertime releases of NOx by about 70,000 tons compared with a business-as-usual scenario and prevent up to 1,300 premature deaths that year.
Siding with Gorsuch in the majority opinion were Chief Justice John Roberts, as well as Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. Barrett’s dissent was endorsed by Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson.
More than a decade ago, while a D.C. Circuit judge, Kavanaugh had authored an opinion striking down an earlier good neighbor plan. That decision was largely reversed in a 6-2 Supreme Court ruling issued in 2014.
The decision released Thursday also marks a victory for a novel legal strategy that was the equivalent of a one-two punch. In a flood of lawsuits launched last year around the country, industries and Republican-run states first challenged EPA’s rejection of the state good neighbor plans that was the legally required forerunner to imposition of the federal alternative.
Then, after persuading appellate courts to stay the disapprovals of a dozen state plans, they convinced the majority of the Supreme Court that the federal framework was therefore no longer workable and posed the specter of huge compliance costs. The high court’s ruling is also likely to at least slow EPA’s proposal to put five more states under the umbrella of good neighbor plan requirements.
In statements Thursday, environmental and business groups alternatively condemned and applauded the outcome.
“Giving corporate polluters a pass to keep prioritizing profits over people is a devastating outcome for public health, especially as we prepare for a summer that could be one of the worst smog seasons on record,” said Holly Bender, the Sierra Club’s chief energy officer, who also questioned the court’s rationale for taking the case at this point.
But at America’s Power, a trade group, President and CEO Michelle Bloodworth labeled the good neighbor rule another example of EPA overreach. “We look forward to this rule ultimately being struck down by the courts,” Bloodworth said, “so that states and utilities can continue focusing on the best ways to deliver affordable and reliable power to American families and businesses.”
