Ohio asks Supreme Court to block EPA's air pollution rule

View a previous report on the Ohio EPA's review of Columbus pollution data in the video player above.

WASHINGTON (WCMH) -- Ohio is leading several other states in asking the U.S. Supreme Court to block a new Environmental Protection Agency rule aimed at reducing air pollution that drifts from one state to another.

The court heard oral arguments on Feb. 21 for Ohio v. EPA, an emergency petition by Ohio, Indiana and West Virginia to postpone implementing the "good neighbor plan" introduced by the EPA last year to require 23 "upwind" states to reduce emissions that affect the air quality in "downwind" states. The EPA said the rule would improve air quality for millions of people, saving thousands of lives, keeping people out of the hospital and preventing asthma attacks.

Ohio and 20 other states responded to the EPA by submitting their own plans on how to be a "good neighbor," outlining their methods to comply with the new proposed regulations. However, the EPA rejected all 21 states' proposals for failing to include any actual changes to their emissions plans, and instead published their own measures for those states.

Before the EPA's plan could go into effect, Ohio, Indiana and West Virginia asked the U.S. Court of Appeals for the District of Columbia Circuit to block the EPA's plan while the legality of the rules is litigated. When the judges denied the state's request, Ohio and others sent an emergency appeal to the Supreme Court.

The court, which has a 6-3 conservative majority, signaled on Feb. 21 it is likely to grant Ohio's request given the justices have previously been skeptical of federal rules regulating the environment. In a 6-3 ruling on West Virginia vs. EPA in 2022, the conservative justices ruled the EPA does not have the authority to regulate power plant emissions and said this authority should fall to Congress.

Ohio Solicitor General Mathura Sridharan argued before the court that the EPA's process was flawed, and noted 12 other states who challenged the EPA had their appeals granted by other courts. Sridharan said the EPA should not have assumed that all 23 states would participate in the rules and argued the measures are too hefty of a financial burden. The three states are "spending immense sums" and are "facing the threat of power shortages and heating shortages," she said.

The court's conservative justices echoed Sridharan and asked why the other court rulings that granted the 12 other states' appeals didn't automatically undermine the EPA's validity. "It's just not explained," Justice Brett Kavanaugh said. The agency "pretended nothing happened," he added. Justice Neil Gorsuch noted that, when the EPA chose to continue with their own rules even when states made clear they didn't want to be subject to it, "nobody got an opportunity to comment on that."

However, Justice Ketanji Brown Jackson, one of the court's three liberal justices, argued it would be "fairly extraordinary" for the court to intervene when lower courts have not ruled yet on the legality of the rules. "I'm trying to understand what the emergency is that warrants Supreme Court intervention at this point," she said. Justice Sonia Sotomayor said it would be an "inversion of normal rules" were Ohio, Indiana and West Virginia to "bypass the very court who’s going to make the substantive decision."

The court's decision is expected by this summer.