Supreme Court appears skeptical of EPA interstate air pollution rule

The Supreme Court heard arguments on the Environmental Protection Agency’s (EPA) interstate air pollution rule Wednesday, with members of the court’s liberal minority expressing skepticism about the appropriateness of hearing the case but the conservative majority seeming amenable to blocking the rule.

The “Good Neighbor” rule, which regulates downwind air pollution produced by upwind states, is the subject of a lawsuit by industry groups and the states of Indiana, Ohio and West Virginia. 

Justice Brett Kavanaugh appeared skeptical of the EPA’s rationale in arguing for the rule’s overall validity when lower courts have already blocked the rule in 12 of the 23 states covered. The agency, he said, was proposing to “just kind of pretend nothing happened, just go ahead” with the rule in the remaining states.

The Clean Air Act allows states to develop their own interstate pollution plans, but enables the EPA to step in with its own if it deems state plans inadequate. State plaintiffs have argued they were not given enough time to comply. 

Justice Ketanji Brown Jackson said it seemed “fairly extraordinary” for the plaintiffs to request emergency relief before having won or lost in the Circuit Court for the District of Columbia. Ohio Deputy Solicitor General Mathura Sridharan argued in response that the states were moving at “breakneck speed” to prevent what she said were imminent power shortages that would result from the rule.

Jackson noted that the rule does not take effect until 2026, suggesting that was enough time to ask the lower court to expedite the request. Justice Sonia Sotomayor, too, suggested the litigants were “rush[ing] to us on an incomplete record.”

“If all these lawsuits that the states are bringing are going to end up losing, 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,” added Justice Elena Kagan.

The court’s six conservative justices have been broadly receptive to curtailing the power of federal agency power, and in oral arguments in January appeared poised to strike down the so-called Chevron doctrine, which gives federal agencies broad latitude in interpreting federal law. In another decision, EPA vs. West Virginia, the court ruled against the EPA’s Clean Power Plan regulating power plant output. 

Environmental groups expressed dismay at the prospect of the court blocking the "Good Neighbor" rule Wednesday.

“Just in the last two years, the Supreme Court’s far-right majority has rolled back protections for our waterways and limited EPA’s tools to fight climate pollution,” League of Conservation Voters Vice President of Federal Policy Matthew Davis said in a statement. “Our communities, our planet, and our democracy deserve better. The Supreme Court must get out of the way and allow the EPA’s Good Neighbor Rule to move forward.”