Supreme Court Looks at EPA’s Justification for Rule to Block Interstate Pollution

WASHINGTON — The Supreme Court heard arguments Wednesday on whether to keep the Environmental Protection Agency’s good neighbor rule that requires states to clean up their industrial pollution that could be carried by wind into neighboring states.

Indiana, Ohio and West Virginia want the Supreme Court to order a hold on implementation of the rule to avoid what they believe would be catastrophic costs for their steel, cement, natural gas and coal-fired power plants.

The result could be business failures and widespread job losses, they argue in court filings.

So far, states challenging the rule have lost in court. After the EPA rule took effect last August, the U.S. Court of Appeals for the District of Columbia Circuit denied the upwind states’ request to put the rule on hold while the lawsuits continue in lower courts.

Downwind states that want the good neighbor rule enforced say they cannot comply with EPA pollution standards by capping their own emissions. They say the upwind states’ pollution is pushing them into noncompliance.

The rule is targeted primarily at nitrogen oxide, a pollutant blamed for producing ground-level ozone.

Environmentalists say that without the restrictions in the good neighbor rule, nitrogen oxide emissions could cause 1,300 premature deaths per year. The rule requires upwind states to reduce nitrogen oxide emissions by about 70,000 tons by the summer of 2026.

The pollutant is blamed for asthma, bronchitis and other respiratory ailments.

The Obama-era rule applies to 23 industrial states in the Midwest and Appalachia. Court challenges have resulted in it being implemented in only 11 of the states.

Part of the dispute focuses on whether the Environmental Protection Agency is exceeding its authority as a government agency by instituting regulations not specifically approved by Congress.

The Supreme Court’s conservative majority in recent years has sought to restrain the regulatory power of agencies.

A landmark June 2022 ruling in the case of West Virginia v. EPA cut back on the EPA’s authority to reduce carbon emissions from power plants unless Congress first approved the regulatory action.

“Capping carbon dioxide emissions at a level that will force a nationwide transition away from the use of coal to generate electricity may be a sensible solution to the crisis of the day,” Chief Justice John Roberts wrote in the ruling. “But it is not plausible that Congress gave EPA the authority to adopt on its own such a regulatory scheme.”

Roberts appeared to continue his skepticism toward the EPA Wednesday when he explained why the Supreme Court took the case on an emergency basis.

“In terms of why it’s necessary to look at this here … it’s because EPA will not look at it until after the hundreds of millions of dollars of costs are incurred,” Roberts said.

The Supreme Court is trying to decide whether the EPA is using sound technical, scientific and economic evidence that justify its regulations.

“The good neighbor rule is grounded in the Clean Air Act’s good neighbor provision and firmly based in long-standing legal precedent,” said Vickie Patton, general counsel for the Environmental Defense Fund, which submitted a friend of the court brief in the case.

The states suing to block the rule call it impractical. Their industries would need to install expensive equipment they cannot afford to capture pollutants that might escape into the atmosphere, they say in court filings.

Corporations joining with the plaintiff states include U.S. Steel Corp. and oil and gas company Kinder Morgan, Inc.

The states say they would need to spend more on environmental enforcement. They also say their electrical grids could end up with too little power if power plants that cannot afford the additional costs are forced to shut down.

Lawyers for the plaintiff states call the EPA’s good neighbor rule “a disaster” in court filings.

Liberal Supreme Court justices seemed unconvinced a disaster would follow if the EPA proceeds with enforcing the good neighbor rule.

“I’m trying to understand what the emergency is that warrants Supreme Court intervention at this point,” Justice Ketanji Brown Jackson said.

She suggested that a lower federal court decide issues in the case as they develop rather than granting the emergency appeal to the Supreme Court.

The case is Ohio v. EPA.

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