The Supreme Court has released its opinion in Ohio v.
EPA, a case involving whether the federal government's
“good neighbor” ozone regulations were properly
promulgated. This decision impacts the authority of the U.S.
Environmental Protection Agency (“EPA”), state
regulators, and those who breathe air in non-attainment areas. As
aptly put by dissent author Justice Barrett, the Court's
decision “leaves large swathes of upwind States free to keep
contributing significantly to their downwind neighbors' ozone
problems….”
The “good neighbor” ozone air quality regulations,
issued by EPA in 2015, required industrial facilities and power
plants in the western and midwestern “upwind” states to
reduce ozone emissions that, due to prevailing winds, drift into
“downwind” eastern states and generate significant air
pollution there. The EPA issued these standards due to concerns
about asthma and other health problems, and required states to
submit plans for how they would comply. In 2021, the EPA rejected
plans from 21 states that had not proposed any emission changes and
promulgated its own plans for those states (and two others that had
not submitted plans). Three states and several industry groups sued
and sought an injunction from the D.C. Circuit, which denied the
injunction. The plaintiffs then sought an emergency stay from the
Supreme Court, which denied the emergency stay but granted
expedited argument on the motion for stay and the
merits.
In a 5-4 decision by Justice Gorsuch, the Court stayed the EPA
regulations. From the decision:
[A]t argument the government acknowledged that it could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and command the same emissions-control measures if conducted for, say, just one State. [] Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument that EPA's final rule was not “reasonably explained,” [] that the agency failed to supply “a satisfactory explanation for its action[,]” [], and that it instead ignored “an important aspect of the problem” before it []. The applicants are therefore likely to be entitled to “revers[al]” of the FIP's mandates on them. [internal citations omitted]
Justice Barrett dissented, joined by Justices Sotomayor, Kagan and Jackson. From the dissent:
The Court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits. In so doing, the Court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record. While the Court suggests that the EPA failed to explain itself sufficiently in response to comments, this theory must surmount sizable procedural obstacles and contrary record evidence. Applicants therefore cannot satisfy the stringent conditions for relief in this posture.
With the regulations now stayed, the potential long-term impact of this decision is yet to be determined. But without more stringent controls on air emissions from upwind states that would have been afforded by the “good neighbor” policy, it is more likely that downwind state regulators would continue to be faced with the quandary of seeking reductions from otherwise compliant sources in order to maintain regional ozone attainment.
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