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Supreme Court to hear cross-state pollution case

States argue EPA plan is too costly and will lead to electric grid outages

Sen. Shelley Moore Capito, R-W.Va., says the rulemaking will leave "millions of Americans behind to deal with the negative consequences.”
Sen. Shelley Moore Capito, R-W.Va., says the rulemaking will leave "millions of Americans behind to deal with the negative consequences.” (Tom Williams/CQ Roll Call file photo)

The Supreme Court on Wednesday will consider a request to halt implementation of an EPA rule on cross-state pollution that critics say is unworkable.

The oral arguments are set as congressional Republicans fight the Biden administration’s air quality standards and consider legislation to alter the EPA’s authority.

In Ohio v. EPA, Republican-led states and industry groups urge the Supreme Court to halt implementation of regulations under the so-called “good neighbor” provision. The Clean Air Act requires states to ensure their emissions do not interfere with a downwind state’s efforts to meet National Ambient Air Quality Standards.

In March the EPA announced it would disapprove of 21 states’ plans to meet the good neighbor provisions for ozone standards finalized in 2015. At the same time, the agency released its own plan for the upwind states to reduce pollution from industrial sources.

The EPA estimated that its good neighbor plan would have significant health benefits, including preventing up to 1,300 premature deaths in 2026, with benefits outweighing the compliance costs.

Opponents who argue that those costs are too high filed lawsuits challenging the EPA’s disapprovals and its plan. Since then, federal courts have temporarily paused the EPA’s disapproval of 12 state plans, although none have issued a final ruling.

Republican Ohio Attorney General Dave Yost, along with attorneys general from West Virginia and Indiana, filed an emergency application seeking to prevent the EPA from enforcing the good neighbor plan.

“The plan inflicts irreparable, economic injuries on the States and others every day it remains in effect,” the application said. “Worse still, the plan is likely to cause electric-grid emergencies, as power suppliers strain to adjust to the federal plan’s terms. To prevent these harms, the Court should step in now.”

The states also argued that with the plan already halted in jurisdictions that represent approximately 75 percent of the total emissions the agency sought to address, it will disproportionately harm the remaining states without the intended effect.

Industry groups filed their own case, and in December the Supreme Court announced it would consider the consolidated applications. In its order, the court said counsel should be prepared to argue whether the regulations are reasonable regardless of how many states will be impacted.

The states argue the EPA’s plan is arbitrary and capricious and that the agency is attempting to assert federal authority over the states “instead of the system of cooperative federalism that Congress intended.”

The oral arguments come at a time when congressional Republicans have grown increasingly critical of the Biden administration’s NAAQS rulemaking.

When the EPA finalized stricter standards for soot on Feb. 7, Senate Environment and Public Works ranking member Shelley Moore Capito, R-W.Va., said that to meet the standards “states will need to limit development across large areas of the country, threatening manufacturing and energy projects, limiting economic growth, and leaving millions of Americans behind to deal with the negative consequences.”

On Thursday the House Energy and Commerce Subcommittee on Environment, Manufacturing and Critical Materials held a hearing on draft legislation that would overhaul the process by which the EPA reviews and sets NAAQS.

“One of the main concerns is that, because of the success of the Clean Air Act already, new standards are getting closer and closer to background levels,” Subcommittee Chairman Earl L. “Buddy” Carter, R-Ga., said. “Because of this, even areas that meet the standard will not have enough room or ‘headspace’ to allow for permitting new or expanded construction.”

Under the draft legislation, the EPA would review these standards for all pollutants every 10 years, instead of the current five-year requirement, and require an independent scientific review committee to include greater representation from state air pollution control agencies tasked with implementing the standards. It would also require that plans to reduce ozone emissions consider economic feasibility in addition to the current requirement of technological achievability.

In a Feb. 14 letter, environmental and public health groups expressed their opposition.

“The medically based health standards that the Clean Air Act has been founded on for 54 years instead could become a political football weakened by polluters’ predicted compliance costs — costs that often are overestimated,” they said.

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