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The Supreme Court Has Dealt a Real Blow to Biden’s Plans for Air Pollution

Environmental attorneys and interest groups say the ruling is highly unusual and fear it indicates the court’s hostility to environmental regulation.

Poor air quality sign is posted over a highway, in Salt Lake City
The justices voted 5-4 to grant an emergency stay to the EPA’s “good neighbor rule.” Rick Bowmer/AP

The Supreme Court has indefinitely paused the Environmental Protection Agency’s efforts to limit air pollution from floating between state lines — a ruling interest groups and environmental lawyers called worrying and “unusual,” even for the conservative court.

The justices voted 5-4 to grant an emergency stay to the states, which asked the court to pause the “good neighbor rule” while lower courts evaluate ongoing challenges to the agency’s plans.

Justice Neil Gorsuch wrote the majority opinion, with Justices John Roberts, Samuel Alito, Clarence Thomas and Brett Kavanaugh concurring, arguing that the EPA failed to adequately consider and adapt to public comments in crafting the rule. Justice Amy Coney Barrett wrote the dissenting opinion, with the remaining liberal justices supporting.

Environmental interest groups and observers stressed that the court’s decision to grant the emergency stay — and even to hear arguments on the issue in the first place — was uncommon and could be bad news for the EPA’s pollution plans overall.

“It is very unusual for the courts to be stepping in for an emergency stay when the merits haven’t been fully briefed, and given the time it took for the parties to move for a stay and the time for the court to decide whether to grant it,” said Carrie Jenks, the executive director of the environment and energy law program at Harvard Law. “It seems very hard to argue that they are treating it like an emergency.”

The EPA rule governed how states must limit pollution that could affect states downwind. Without this stay, it would have gone into effect for the 11 states that do not have ongoing legal challenges in lower courts.

“The EPA is disappointed in today’s ruling, which will postpone the benefits that the Good Neighbor Plan is already achieving in many states and communities,” the agency said in a statement. “While the Good Neighbor Plan is on pause, Americans will continue to be exposed to higher levels of ground-level ozone, resulting in costly public health impacts that can be especially harmful to children and older adults and disproportionately affect people of color, families with low incomes, and other vulnerable populations.”

Now that the emergency stay has been granted, states will not have to comply with the rule while the lower courts consider the ongoing challenges.

They may never have to comply. In granting the emergency stay, the justices have essentially foreshadowed a future opinion on the actual merits of the case, Sambhav Sankar, an attorney with Earthjustice, told NOTUS. Lower courts seriously consider the Supreme Court’s rulings in their own decision-making, Sankar added.

Gorsuch indicated the court’s skepticism in his opinion.

“Our resolution of these stay requests ultimately turns on the merits and the question who is likely to prevail at the end of this litigation,” he wrote. “The applicants are likely to prevail. … The EPA failed to address an important problem the public could and did raise during the comment period.”

In her dissenting opinion, Barrett flatly disagreed with the idea that the lower court cases are likely to succeed and expressed fear that the court was not appropriately cautious.

“Given the number of companies included and the timelines for review, the Court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years,” she wrote. “Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”

Sankar said this ruling could very well be the new status quo for the current court: The administrative state, and especially the EPA, are on notice.

Environmental litigators are still waiting for the court to rule on two cases that are expected to greatly restrict the power of the administrative state and open the floodgates for new challenges to agency rules.

“It’s just a signal of how aggressively this court is attacking environmental regulations in particular. I would say environmental regulations are now guilty until proven innocent in front of the Supreme Court,” Sankar said.

“No one really knows for sure why they decided to do this,” Jenks said. “It’s really unclear to those who have been working on these rules, including the predecessor programs for a long time.”

Anna Kramer is a reporter at NOTUS.