The smog case before the Supreme Court puts America

In recent years, the U.S. Supreme Court has become an abattoir for environmental laws. The casualties so far include a comprehensive plan to control greenhouse gas (GHG) emissions from power plants, Clean Water Act protections for a hundred million acresacre of wetlands, and — soon — the Chevron deference principle that has kept judges from second-guessing many of EPA’s regulations.

On February 21, the Supreme Court will hear arguments in yet another challenge by industries and conservative states to a federal regulation. And yet again, the Court isn’t just threatening our health. It’s challenging the legal principles that used to limit the power of unelected judges in our society.

As with many of the Supreme Court’s recent forays into environmental law, the Court is hearing Ohio v. EPA in an unprecedented context. No lower court has said that the regulation at issue violates the law. Instead, industry and their allies are asking the Court to temporarily block the regulation even though a lower court refused to do so before ruling on its validity — and they aren’t asking the high court to rule on the regulation’s validity itself.

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To understand the threat, it helps to understand how the Clean Air Act works. Like many environmental laws, the Act gives states a major regulatory role. EPA scientists decide how polluted our air can be, but it’s up to state officials to develop plans for achieving that minimum air quality.

The EPA’s analysis shows that for an annual cost of $910 million, the plan would deliver health benefits worth $4 billion to over $15 billion.

This system gives states considerable flexibility, but there’s a problem: downwind states face a disadvantage. Their air drifts in from other states, pre-polluted by sources they can’t control. To address that problem, Congress put a backstop provision in the Act that prohibits one state from running air quality programs that create air quality problems for another. Hence the name: the Good Neighbor Provision.

Last year, EPA concluded that 21 states are not doing enough to help their downwind neighbors meet air quality standards for ground-level ozone, better known as smog. EPA “disapproved” inadequate Clean Air Act implementation plans in those states, and — as the Clean Air Act requires — set out a federal plan to replace them. EPA’s “Good Neighbor Plan” requires upwind states to control major pollution sources inside their borders (think cement kilns, power plants, incinerators) to help their neighbors meet smog standards.

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The smog standards we’re talking about are neither new nor ambitious, by the way. While they were drafted during the Obama administration, the Trump administration kept them, and endorsed them again in 2020 with the support of GOP politicians. Even the industry-aligned National Association of Manufacturers agrees that they are “based on sound science’ and would support “sustainable domestic growth.”

Because smog is so harmful, particularly to children, actually achieving these standards would deliver enormous benefits. That’s what the Good Neighbor Plan aims to do, and that’s why it’s worth implementing now. The EPA’s analysis shows that for an annual cost of $910 million, the plan would deliver health benefits worth $4 billion to over $15 billion. For a 1 percent increase in electricity costs, the rule will prevent over 2,000 hospital visits, avoid 25,000 lost days of work, and avoid 430,000 missed school days for kids whose asthma would otherwise keep them at home. All that in 2026 alone.

Polluters in upwind states, of course, focus only on one side of that ledger. They warn of impossible standards and crippling costs. Companies driven by short-term returns are practically required to say these things before regulations come into effect. But history shows that they then innovate to cut pollution in new and cheaper ways. As a result, studies suggest that EPA is likely overestimating the costs of the Good Neighbor Plan.

The Supreme Court used to reserve its own stay authority for true emergencies. There’s none here.

That doesn’t mean that we should deny polluters their day in court. Congress recognized that polluters will always question new air regulations. But it also knew that having this play out in multiple courts would create chaos. So the Clean Air Act requires anyone who wants to challenge regulations like the Good Neighbor Rule to do so in a single court that can hear them all together: the D.C. Circuit.

Cue the gamesmanship. Polluting industries and some conservative states skirted this requirement by challenging the EPA decision that disapproved their state plans — not the federal Good Neighbor Plan. By taking a national matter to regional courts that didn’t consider the full consequences of their rulings, they got decisions that effectively blocked the Plan, at least temporarily, in 12 states.

The challengers then sought to leverage this patchwork of regional stays into a national stay of the entire Good Neighbor Plan. They told the D.C. Circuit that if the Plan couldn’t go into effect everywhere, it shouldn’t go into effect anywhere, that the court should stay—that is, pause—the entire project until they could finish all their legal challenges. The D.C. Circuit declined to do so before ruling on the plan’s validity, but the challengers knew where to go next.

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The Supreme Court used to reserve its own stay authority for true emergencies. There’s none here. By the time the Court hears arguments, it’ll have been over four months since the stay applications were filed. If the Court really thought that the D.C. Circuit had mishandled an emergency situation, surely it would have moved more quickly. What’s worse, the industry petitioners haven’t identified any obvious legal flaw of the type normally required to justify a stay. They’re just asking the Court to second-guess EPA’s decision on a legally complex issue involving exhaustive scientific analysis. Judged by the normal standards of Supreme Court practice, it’s surprising — shocking even — that the Court hasn’t already denied relief.  

The Supreme Court could easily have let these challenges, like thousands of other challenges brought every year, proceed through the lower courts in the normal course of business. It is hard to avoid the conclusion that it is treating environmental and other public health regulations as guilty until proven innocent. That is not the way our legal system is supposed to work.

The proper response would have been for the Court to wave away any request to stay EPA’s Good Neighbor Plan before the D.C. Circuit rules on its validity. It still can. Our right-wing Justices should follow the rules the Court created for these situations, rather than their ambition to serve as our regulators-in-chief.