The Supreme Court appears ready to block a Biden plan on air pollution

Members of the Supreme Court's conservative majority appeared inclined Wednesday to temporarily halt an effort by the Biden administration to halt air pollution drifting across state lines.

In recent rulings, the court has limited the Environmental Protection Agency's authority to address climate change and water pollution. The decision in the four consolidated cases that came before the judges on Wednesday, expected in June, seemed likely to deliver another setback to the agency.

The new cases related to the government's “good neighbor plan”. Under the proposal, which initially applied to 23 states, factories and power plants in Western and Midwestern states would be required to reduce ozone pollution drifting into the eastern states.

The justices appeared to be divided along familiar lines over whether to block the plan, which directs states to take measures intended to reduce emissions that cause smog and are linked to asthma, lung disease and premature death.

A ruling halting the plan would be provisional as a challenge to it would be heard at an appeals court and could then return to the Supreme Court. The question for the judges was what should be done in the meantime. Even a temporary loss to the administration could put the plan on hold for many months and perhaps longer.

The Clean Air Act gives states the ability to come up with their own plans, subject to EPA approval. Last February, the agency concluded that 23 states had failed to establish adequate plans to comply with the revised ozone standards. The agency then released its own plan.

A wave of lawsuits followed, and seven federal appeals courts blocked the agency's disapproval of plans submitted by a dozen states, bringing eleven states under the federal rule.

Three states — Ohio, Indiana and West Virginia, along with energy companies and trade groups — have challenged the federal plan directly in the U.S. Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to suspend the rule while the lawsuit progressed, the challengers asked the Supreme Court to intervene.

The application of the three states urged the justices to block the new rule in light of the appeals courts' rulings, saying that “the federal plan is already a failed experiment” and is “a mere shell of its original self.” ”

The EPA responded that the preliminary rulings on the state plans should not affect the national rule and that blocking them would have serious consequences.

“It would slow efforts to control the pollution that contributes to unhealthy air in leeward states, contrary to Congress' express directive that sources in leeward states must take responsibility for their contributions to emissions levels in leeward states,” the agency said.

Judith N. Vale, an attorney for states supporting the plan, described its practical impact during Wednesday's oral argument.

“In the Good Neighbor provision, Congress protected the Leeward States from pollution emitted in the Windward States,” she said. “A suspension of the Good Neighbor Rule would undermine that legislative purpose and the public interest by sending ozone pollution to Downwind States, including Connecticut, Wisconsin, and New York, which receive substantial pollution from the specific Upwind States currently governed, including Ohio and Indiana.”

Much of the discussion Wednesday revolved around whether states that remained covered by the federal plan had been harmed by its shrinking geographic reach.

Judge Sonia Sotomayor said the remaining states were not made worse off by the exclusion of the others from the federal plan. “There will be no change in your charges,” she told Mathura J. Sridharan, Ohio's deputy attorney general.

But Judge Brett M. Kavanaugh said the agency had not explained why the plan still made sense given its more limited scope, calling its justification a “goose egg.”

“They have no explanation for that,” he said.

Catherine E. Stetson, a lawyer for industry groups challenging the federal plan, said it would subject them to “billions of dollars in compliance over the next 12 months.”

The four consolidated cases, including Ohio v. Environmental Protection Agency, No. 23A349, reached the court via emergency motions, which are typically resolved on a summary basis. The court's decision to hear arguments in such a situation – on whether or not to grant a stay – was quite rare.

“This is an unusual stance for us,” Justice Elena Kagan said, suggesting it was also an unwelcome one.

Judge Ketanji Brown Jackson also expressed doubts about whether the court should make a follow-up decision based on emergency requests. “I am trying to understand what the emergency situation is that warrants intervention by the Supreme Court at this time,” she said.

“I mean,” she added, “the Supreme Court's emergency docket is certainly not a viable alternative for any party that feels it has a meritorious claim on the government and doesn't want to comply with a rule while they're in office. to challenge.”

But Judge Kavanaugh said the court's ordinary criteria for whether to suspend a regulation were sufficient to decide the case, adding that most of them asked deep questions.

“Both parties suffered irreparable damage, so that's a shame,” he said. “The public interest, in my view, both parties have a strong public interest.” That left, he said, an evaluation of how likely the challengers were to succeed based on their underlying arguments.