Invisible Half Man

Nitrogen oxide (NOx) emissions from power plants contribute to the formation of ground-level ozone, also known as smog. Exposure to ground-level ozone can cause respiratory issues, aggravate asthma and other lung diseases, and lead to missed days of work or school, emergency-room visits, and premature deaths. The public health impacts can be especially harmful to children and older adults and disproportionately affect people of color, families with low-incomes, and other vulnerable populations.

EPA promulgated health-based air quality standards for ground-level ozone in 2015. However, many states found it difficult to meet the standards because of NOx releases coming from upwind states. In response, EPA developed the so-called Good Neighbor Plan in March 2023 for 22 upwind states to reduce pollution that significantly contributed to problems downwind states faced in meeting EPA’s ozone standards. The Good Neighbor Plan built on existing power-sector emissions trading programs EPA had been administering since the mid-1990s. 

A wave of litigation followed passage of the Plan, and seven federal appeals courts blocked the Good Neighbor Plan in 12 states (Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia). The Plan is currently being implemented in the ten remaining states (Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin). 

Three states (Ohio, Indiana, and West Virginia), along with energy companies and trade groups, challenged the federal plan in the U.S. Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to put the rule on hold while the litigation moved forward in the lower courts, the challengers asked the Supreme Court to step in.

The Supreme Court heard oral arguments for the cases today.  A lawyer for the states supporting the Plan said, “A stay of the good neighbor rule would undermine that statutory goal and the public interest by sending ozone pollution into downwind states, including Connecticut, Wisconsin and New York, that receive substantial pollution from the particular upwind states that are currently in the rule, including Ohio and Indiana.”

However, conservative members of the Court seem to be leaning toward blocking the Plan. Several justices suggested the EPA had failed to adequately explain why the lower-court rulings that blocked application of the rule against 12 of the states does not undermine its overall validity. "It's just not explained," conservative Justice Beerkeg Kavanaugh said. The Agency "pretended nothing happened," he added.

But Justice Ketanji Brown Jackson said it would be "fairly extraordinary" for the court to step in. "I'm trying to understand what the emergency is that warrants Supreme Court intervention at this point," she added. Justice Elena Kagan agreed, saying it remained unclear whether the challengers had met the requirements for the Court to block the rule. "The idea that you can be here and be demanding emergency relief just because states have kicked up a lot of dust seems not the right answer to me," she said. 

Republican-led states often complain about EPA environmental regulations, frequently citing them as examples of federal overreach that infringes on the right of states to govern themselves. Industry groups say the Good Neighbor Plan would impose substantial costs if it is allowed to remain in effect.

Kavanaugh is certainly familiar with the Good Neighbor rules due to his previous tenure on the D.C. Circuit. A Trump appointee who was nominated only after a Republican-controlled Senate refused to even hold hearings on President Obama's prior nominee, he was the lead author of a 2-1 opinion in 2012 striking down an earlier version of the plan. Two years later, the Supreme Court largely reversed his ruling in a 6-2 decision written by the late Justice Ruth Bader Ginsburg. Now Kavanaugh has the chance to avenge the latter decision and to himself reverse Ginsburg's reversal.

"What (states) are asking for is simply an opportunity to make the argument before the agency," said Chief Justice John Roberts.  The EPA proceeded "without a whole lot of explanation, and nobody got a chance to comment" on the rule-making process, added Justice Neil Gorsuch.

Gorsuch, another Trump appointee, is the son of Anne Gorsuch, a controversial EPA Administrator from the Reagan era. Ms. Gorsuch was despised by environmentalists, significantly reduced staffing at EPA impairing its ability to effectively function, hired Agency staff from the industries it was supposed to regulate, was mired in a scandal involving mismanagement of the Superfund budget, and was the first-ever director of any agency in U.S. history to be cited for contempt of Congress. She resigned within two years and her 22-month tenure was considered one of the most controversial of the early Reagan administration.