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EPA rule that limits pollution is being challenged in the Supreme Court


The U.S. Supreme Court today hears arguments in an environmental case that centers on the obligation to be a good neighbor. Several states and energy companies want the justices to block a federal rule meant to limit ozone air pollution. NPR's Carrie Johnson reports.

CARRIE JOHNSON, BYLINE: At the heart of the dispute is part of the Clean Air Act known as the Good Neighbor provision. It's designed to help protect people from serious health problems, including early death, because of pollution that floats downwind from neighbor states. Richard Lazarus is a law professor at Harvard.

RICHARD LAZARUS: Air pollution doesn't respect state borders.

JOHNSON: States like Wisconsin, New York and Connecticut can struggle to meet federal standards and reduce harmful levels of ozone because of emissions from coal plant smokestacks and natural gas pipelines that drift across their borders.

LAZARUS: But one of the primary reasons why Congress passed this law in 1970 was the one place you could not trust the states to do it on their own was when there was interstate air pollution.

JOHNSON: Vickie Patton is general counsel at the Environmental Defense Fund. Patton says these bedrock protections can save lives.

VICKIE PATTON: There are children, there are older adults, people who work outside in the summer and people who are afflicted by asthma who are at very, very serious risk. And this case is just about asking those upwind polluters to do their fair share.

JOHNSON: Three of those upwind states - Ohio, Indiana and West Virginia - are asking the Supreme Court to freeze the Good Neighbor Plan while they pursue an appeal with a lower court in the D.C. Circuit. The justices agreed to hear arguments under their emergency docket.

STEPHEN VLADECK: It's only the third time since 1971 that the Supreme Court is hearing arguments on one of these procedural applications.

JOHNSON: That's Stephen Vladeck. He's a law professor at the University of Texas and author of a book on the court's emergency actions. Vladeck says the other two cases centered on vaccine mandates during the height of the COVID pandemic. Of the Good Neighbor case, Vladeck says...

VLADECK: If this is an emergency, what isn't? You know, there are lots of federal policies that are going to have massive stakes, and they're going to have massive stakeholders on both sides. It's not at all obvious why this case merits this kind of special treatment.

JOHNSON: He says, traditionally, the Supreme Court goes last after a case has made its way through the lower courts.

VLADECK: This case hasn't really gone very far at all. I mean, the only thing that's happened in this entire litigation to date is that the D.C. Circuit, the federal appeals court, refused to give the same thing that they're now asking the Supreme Court for - refused to basically pause the rule at the beginning of the litigation.

JOHNSON: Lawyers for the states and companies challenging the Good Neighbor rule declined to talk on tape before today's arguments. In court papers, they call the EPA rule a disaster and a shell of itself. That's because the plan originally applied to 23 states, but lower courts have paused it in about half of them for a bunch of different reasons. These lawyers say the states should not have to shoulder the costs for what they say is an unlawful federal mandate. But environmental advocates say many of those obligations won't kick in until 2026, giving big polluters a couple of years to prepare.

Richard Lazarus at Harvard Law School says to win a pause at the Supreme Court, the states challenging the rule will have to show they're likely to win on the merits and they're suffering serious harm. Lazarus says regulators have had a hard time at the Supreme Court over the past two years. First, the justices struck down the Clean Power Plan. Then, they slashed the EPA's jurisdiction over the Clean Water Act. And just last month, they seemed skeptical about another case involving regulations for the fishing industry.

LAZARUS: It certainly seems like a court that's sort of on a juggernaut to cut back in an aggressive way on sort of federal environmental law.

JOHNSON: Vickie Patton, whose environmental group submitted a friend of the court brief in the case, says she'll be watching closely.

PATTON: Industry has a responsibility to be a good neighbor under our nation's clean air laws, and I hope the Supreme Court does not upend those protections.

JOHNSON: There's no clear timetable for a decision from the justices.

Carrie Johnson, NPR News, Washington. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson is a justice correspondent for the Washington Desk.