Supreme Court blocks controversial pollution rule meant to fight smog

WASHINGTON − The Supreme Court on Thursday blocked the Biden administration from enforcing its controversial “good neighbor” plan to reduce smog-forming pollution while its legality is being challenged.

That 5-4 decision could also make it easier for the plan to be scrapped altogether if there’s a change in administrations after the November presidential election.

Writing for the majority, Justice Neil Gorsuch said the underlying challenge is likely to succeed so the rule should be iced in the meantime.

Justice Amy Coney Barrett, who joined the court's three liberals in dissenting, said the majority's decision "leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbor's ozone problems for the next several years."

Ohio, Indiana and West Virginia − three of the states whose pollution drifts across state lines – had asked for a reprieve from the reduction requirement, finding a receptive audience in a conservative court often on the lookout for what it views as regulatory overreach.

The three states argued the plan is likely to be eventually struck down by the courts as an excessive amount of pollution control and it would be too costly for them to comply in the meantime.

Nine states on the receiving end of pollution − New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania and Wisconsin − had joined with the Environmental Protection Agency in urging the court to keep the plan in place to avoid years of delay in significant emissions reductions.

Clean air advocates also feared a repeat of what happened to the Obama administration’s signature climate change policy. The Supreme Court put the Clean Power Plan on hold while it was being challenged, a delay that later allowed the Trump administration to kill the plan.

Sam Sanker, senior vice president for programs with Earthjustice, said there were many ways the court could have ordered a more limited fix to address its concerns.

“It didn’t have to take the aggressive action that it did,” he said. “So what this shows me is that this court is no longer neutral in cases involving environmental regulations, and actively skeptical of EPA and new environmental regulations.”

An EPA spokesman said the agency is disappointed in the decision, calling the Good Neighbor Plan essential to ensuring states are complying with the Clean Air Act.

The agency has estimated that, in 2026 alone, the plan would have prevented 1,300 premature deaths, prevented 2,300 hospital and emergency room visits and reduced asthma symptoms for millions.

One of the most widespread pollutants in the United States, smog is also one of the most dangerous, according to the American Lung Association. It causes breathing difficulties, worsens lung diseases and shortens lives.

More than 100 million Americans live in counties with repeated instances of unhealthful ozone levels, the main component of smog, according to the association’s latest report.

Since the 1990s, the government has used "good neighbor" rules to take into account that pollutants can travel hundreds of miles, causing a significant share of the pollution in another state.

If states don’t take sufficient action on their own, the federal government can step in.

The Biden administration imposed the Good Neighbor Plan on large industrial polluters in 23 states last year after rejecting 21 state proposals as ineffective. Two other states failed to submit a plan.

But even before the Supreme Court was asked to get involved, the increased reduction requirements were put on hold in 12 states which challenged the EPA’s rejection of their preferred pollution control plan.

Gorsuch said the EPA's plan relied on the assumption that all 23 states would have to reduce emissions and didn't have a good explanation for how the plan would work otherwise.

"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," Gorsuch wrote. "But if there is an explanation, it does not appear in the final rule."

Barrett called this view an "alleged procedural error that likely had no impact on the plan."

"So (the majority's) theory would require EPA only to confirm what we already know: EPA would have promulgated the same plan even if fewer States were covered," she wrote.

The emissions come from coal-fired power plants, steel mills, cement factories, natural gas pipeline engines and other sources.

Though many upwind states can still use low-cost, widely available pollution control equipment, the downwind states argue, options are more expensive for states that are already heavily controlling their own emissions.

New York, for example, already requires controls that cost up to $5,500 per ton of pollutants reduced compared with the $1,600 per ton cost of controls required in the near term for sources in Ohio, Indiana and West Virginia, according to New York’s court filing.

But those three states said they would have to spend too much time and money on a plan that’s already a “disaster” and could leave states without sufficient power sources if power plants shut down because it’s too expensive to comply.

This article originally appeared on USA TODAY: Supreme Court decision blocks cross-state pollution rule