Supreme Court appears skeptical of EPA’s ‘good neighbor’ rule on power plant pollution

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WASHINGTON — The Supreme Court’s conservative majority on Wednesday expressed skepticism as the Environmental Protection Agency seeks to continue enforcing clean air rules in 11 states amid separate legal challenges across the country. It seemed like that.

The EPA’s “Good Neighbor” rule is intended to limit stack emissions from power plants and other industrial sources that create smog-causing pollution in downwind areas.

Three energy-producing states, Ohio, Indiana, and West Virginia, along with the steel industry and other groups, challenged the rule, calling it costly and ineffective. The rule is on hold in more than a dozen states due to court challenges.

The Supreme Court, with a 6-3 conservative majority, has increasingly curtailed the power of federal agencies, including the EPA, in recent years. The justices have ruled on the EPA’s authority to fight air and water pollution, including a landmark 2022 ruling that limited the agency’s ability to regulate carbon dioxide emissions from power plants that contribute to global warming. has been restricted. The court also struck down vaccination mandates and blocked President Joe Biden’s student loan forgiveness program.

The court is currently considering whether to overturn the 40-year-old Chevron decision, which has been the basis for upholding a wide range of regulations related to public health, workplace safety, and consumer protection.

EPA lawyers said the “good neighbor” rule is important to protect downwind states that receive unwanted air pollution from other states. Acting U.S. Attorney Malcolm Stewart, who represents the EPA, said that in addition to the potential health effects, states face their own federal deadlines to ensure clean air.

States such as Wisconsin, New York and Connecticut may struggle to meet federal standards and reduce harmful ozone concentrations because of pollution from power plants, cement kilns and natural gas pipelines that drift across their borders. .

Judith Baer, ​​New York’s deputy attorney general, said 65 percent of some states’ smog pollution comes from outside the state.

While the EPA plan aims to provide a national solution to the ozone pollution problem, challengers said the plan is based on the assumption that all 23 states covered by the rule will participate. .

Justice Brett Kavanaugh seemed sympathetic to this argument, saying that because the EPA plan was originally designed for 23 states, it could impose unreasonable costs on states that remain under the agency’s jurisdiction. Ta.

“The EPA came back and said, ‘We’re going to move forward anyway, even if it means fewer states,’” Kavanaugh said. “Let’s pretend nothing happened and proceed with the procedures in 11 states.”

Justice Neil Gorsuch added that the EPA “proceeded without adequate explanation and no one was given an opportunity to comment” as part of the rulemaking process.

Chief Justice John Roberts said, “What the state is looking for is simply an opportunity to make its case before the authorities.”

Stewart responded that state requirements for regulating air pollution do not change based on the number of states covered by the rule. “The requirements are exactly the same,” he said.

Justice Ketanji Brown Jackson questioned why the Supreme Court was hearing the case before other legal challenges were completed. Lawyers for industry groups challenging the rule said it could impose significant and immediate costs that could affect the reliability of the power grid.

“It will cost hundreds of millions, if not billions, of dollars over the next 12 to 18 months,” industry attorney Katherine Stetson said, adding that the final rule would only reduce air pollution by a small amount. There are no guarantees, he said. “There’s an issue of overmanagement here,” she says.

The EPA announced that power plant emissions in 2023 decreased by 18% in the 10 states that are authorized to implement the rule, which was finalized last March. Those states are Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin. In California, limits on emissions from industrial sources other than power plants are scheduled to go into effect in 2026.

The rule is pending in another dozen states due to separate legal challenges. The states are Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia.

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