Supreme Court Will Consider Hold on Biden’s Air Pollution Plan

The Supreme Court announced on Wednesday that it would hear arguments in February on whether it should temporarily stop the Biden administration from requiring factories and power plants in Western and Midwestern states to cut air pollution that drifts into Eastern states.

The court’s brief order did not suspend the program in the meantime or add the case to the court’s merits docket. Oral arguments in cases that reach the court by way of an emergency application, as in this case, are quite rare.

The four consolidated cases concern the administration’s “good neighbor” rule, which initially applied to 23 states, directing them to take measures to ensure their pollution did not affect downwind states.

The rule required power plants and industrial manufacturers to cut emissions of nitrogen oxide, which causes smog and is linked to asthma, lung disease and premature death. Prevailing winds carry the pollutant toward Eastern states with fewer industrial sites.

The Clean Air Act gives states an opportunity to devise their own plans, subject to approval by the Environmental Protection Agency. In February, the agency concluded that 23 states had failed to produce adequate plans to comply with its revised ozone standards.

A wave of litigation followed, and seven federal appeals courts blocked the agency’s disapproval of plans submitted by a dozen states, leaving 11 states subject to the federal rule.

Three states — Ohio, Indiana and West Virginia, along with energy companies and trade groups — challenged the federal rule directly in the United States Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to put the rule on hold while the case moved forward, the challengers asked the Supreme Court to step in.

“E.P.A. had to disapprove over 20 state implementation plans before the agency could adopt its national rule,” an emergency application by several energy companies said. “E.P.A.’s disapprovals of those state plans are currently under challenge in seven federal circuits, and every one of those courts has stayed E.P.A.’s disapproval of the underlying state plans. Yet E.P.A. continues to implement the rule — no longer a uniform, national rule — despite it being stayed in a majority of the states in which it was meant to apply.”

The application from the three states urged the justice to block the new rule in light of the appeals courts’ rulings, saying that “the federal plan is already a failed experiment” and “is but a shell of its original self.”

The E.P.A. responded that the provisional rulings on the state plans should not affect the national rule and that blocking it would have severe consequences.

“It would delay efforts to control pollution that contributes to unhealthy air in downwind states, which is contrary to Congress’s express directive that sources in upwind states must assume responsibility for their contributions to emissions levels in downwind states,” the agency’s brief said.

The brief added: “A stay of the rule could result in years of delays for the phase-in of significant reductions in emissions. Such delays would seriously harm the downwind states that suffer from their upwind neighbors’ emissions, placing the entire burden of achieving healthy air quality on those states and exposing their residents to public-health risks.”