In a contentious dispute before the U.S. Supreme Court this week, legal analysts expect the justices to side with three states and industry groups and companies that want the U.S. Environmental Protection Agency to stop enacting ‘a rule that limits ozone emissions that affect air quality in windward states until all of its ongoing legal challenges are resolved.
The high court agreed to hear the case in December as an “urgent” appeal.
The so-called “good neighbor provision” in the federal Clean Air Act requires emissions cuts from power plants and other industrial sources in 23 states that affect the ability of windy states to meet national air quality standards. ambient air The 2015 rule required states to submit plans to reduce emissions affecting downwind states.
Last year, however, the EPA rejected plans submitted by 21 states and implemented its own emissions reduction plan for those states and two others. About half of the 23 states filed legal challenges to the agency’s rejection of their individual plans, and several courts stayed those agency decisions.
But the EPA continued with its plan for those 23 states even after 12 had sued. “The EPA didn’t explain why it could move forward … without 11 states in the plan,” Tina Van Bockern, an environmental attorney at Holland & Hart told ENR.
States and industry say the agency didn’t adequately explain its decision to implement its own plan and didn’t provide an opportunity to weigh in. A key problem is that the EPA didn’t take into account what happens to downwind emissions reductions when fewer than 23 states participate in the federal plan, said a lawyer for the states — Ohio, Indiana and Virginia.
What will the judges weigh?
Van Bockern said the court’s conservative justices will weigh whether the EPA feels that not all states are included in the plan now and how it might move forward with 12 states missing.
Assistant U.S. Attorney General Malcolm Stewart argued that the EPA anticipated that the geographic makeup of the plan could change and that each state had an emissions reduction requirement that would remain the same regardless of the number of states covered in the plan of 23 states.
Last August, the three states, along with trade groups and companies that include those that own and operate natural gas pipelines, appealed the EPA rule to the federal appeals court in Washington, DC. They then sought the high court’s involvement when the lower court refused to block the state’s EPA 23 plan as litigation on the merits continued.
“Justices Elena Kagan and Sonia Sotomayor clearly disagreed with the states and the industry,” Van Bockern said. Justice Ketanji Brown Jackson and other liberal justices also questioned why the case was brought to the Supreme Court before the appeals court had even been informed. “I’m trying to understand what the emergency is that warrants the Supreme Court’s intervention at this time,” Jackson said.
Although the merits of the cases have yet to be litigated, Judge Brett Kavanaugh signaled that he will rule against the EPA, noting that he had overturned a previous agency mandate in 2012 as an appeals court judge DC facilities. The Supreme Court overturned it two years later, in a 6-2 decision written by the late Justice Ruth Bader Ginsburg.
Matthew Davis, vice president of the League of Conservation Voters and a former EPA scientist, said the group is alarmed that “extremist judges … on the courts continue to threaten minimum federal clean air protections “, insisting that the court should allow the good neighbor. rule to move forward.
