Supreme Court blocks Biden plan on air pollution

Washington • The Supreme Court temporarily put on hold Thursday an Environmental Protection Agency plan to curtail air pollution that drifts across state lines, dealing another blow to the Biden administration’s efforts to protect the environment.

The ruling followed recent decisions chipping away at the agency’s authority to address climate change and water pollution.

The ruling was provisional, and challenges to the plan will continue to be litigated in an appeals court and could then return to the Supreme Court. But even the temporary loss for the administration will suspend the plan for many months and maybe longer.

The vote was 5-4. Justice Amy Coney Barrett, joined by the court’s three liberal members, dissented.

The decision concerned the administration’s “good neighbor” plan, which initially applied to 23 states. Under the proposal, factories and power plants in Western and Midwestern states must cut ozone pollution that drifts into Eastern ones. The emissions cause smog and are linked to asthma, lung disease and premature death.

The Clean Air Act allows states to devise their own plans, subject to approval by the EPA. In February 2023, the agency concluded that 23 states had not produced adequate plans to comply with its revised ozone standards. The agency then issued its own plan.

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

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

The application from the three states urged the justices 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 EPA 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’ 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 four consolidated cases, including Ohio v. Environmental Protection Agency, No. 23A349, reached the court by way of emergency applications, which are typically disposed of in summary fashion. The court’s decision to hear arguments in such a setting — about whether to grant a stay — was quite rare.

This article originally appeared in The New York Times.

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