What happens if states pollute their neighbors’ air? Supreme Court will soon decide

An Environmental Protection Agency regulation intended to protect millions of Americans from hazardous ozone pollution now faces legal jeopardy before the Supreme Court.

During oral arguments on Feb. 21, attorneys representing Ohio, West Virginia and Indiana asked the justices to postpone part of the Clean Air Act known as the “Good Neighbor” provision.

The provision prohibits 23 states from producing emissions that “significantly” affect other states’ abilities to maintain federal air quality standards.

Among the states that fall under the provision are Texas, Oklahoma, Illinois, Pennsylvania and New York.

It was designed to safeguard public health in downwind states given that air pollutants can migrate great distances — including across state lines.

During its first year of enactment, the provision helped cut smog emissions of nitrogen oxides by 18%, marking an “an important step toward the overall goals of the program,” the EPA said in November.

Arguments from the states and EPA

The three states are asking the high court to enact an emergency pause of the regulation while the U.S. Circuit Court of Appeals reviews a legal challenge to the provision.

Their argument centers on the fact that lower courts have already frozen the provision in a dozen of the 23 states.

The provision’s “failure has become consequential,” an attorney for the plaintiffs told the court.

“The plan now regulates under half of the states and a quarter of the emissions that the EPA originally set out to regulate,” the attorney said. “Under this fractured plan and without a stay, the remaining states and their industries face serious harm.”

To comply with the provision, the remaining 11 states and industries within them have spent large sums of money and now face potential power shortages, the attorney argued.

In response, an attorney for the EPA contended that the provision should still hold even if some of the original 23 states no longer have to comply.

The “EPA anticipated from the outset that the plan was one whose geographic proposition could change,” the agency’s attorney told the court.

The agency “devised the requirements for each state in order that they would be workable if a smaller or larger set of states were ultimately covered,” the attorney added.

What could happen

If the court sides with the plaintiffs, there likely would not be an immediate impact on current air pollution levels, legal experts told McClatchy News.

“The impact of staying the rule would not be an increase in air pollution, but a delay in decreasing current levels of air pollution,” Michael Gerrard, an environmental law professor at Columbia University Law School, told McClatchy News in an email.

The bulk of the provision was not scheduled to take effect until 2026 anyway to provide industries time to make changes, David Hunter, an environmental law professor at American University Washington College of Law, told McClatchy News in an email.

However, an emergency stay of this kind is seldom enacted by the high court, Hunter said.

Typically, the court will only rule on a case before a lower court if the plaintiff demonstrates irreparable damage and a high likelihood of winning their case before the lower court, he said.

During the oral arguments, several justices appeared to express skepticism about issuing a stay.

“I’m trying to understand what the emergency is that warrants Supreme Court intervention at this point,” Justice Ketanji Brown Jackson said to the plaintiffs’ attorney.

However, some recent high court rulings indicate that a favorable ruling for the plaintiffs is not out of the realm of possibility, Hunter said.

“This Court is obviously more activist than in the past and clearly interested in curtailing federal government regulatory authority,” Hunter said.

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