WASHINGTON — The Supreme Court on Wednesday will consider whether to block a Biden administration policy aimed at reducing air pollution that travels from one state to another and creates harmful smog.
The court is hearing four related cases involving challenges to the policy brought by three Republican states — Indiana, Ohio and West Virginia — and various affected industries, including natural gas pipeline operators.
The Supreme Court, which has a 6-3 conservative majority, is skeptical of the federal government’s broad efforts to regulate matters, including the environment.
Trial in 2022 is limited The Environmental Protection Agency’s ability to use the Clean Air Act to combat emissions that contribute to climate change. Court last year weakened Landmark Clean Water Act by limiting EPA’s regulatory control over wetlands.
Sam Sankar, a lawyer at the environmental group Earthjustice, said that recently the court has treated environmental policies as “guilty until proven innocent.”
The “good neighbor plan” introduced by the EPA last year seeks to curb nitrogen oxide pollution from industrial facilities. If fully implemented, it would apply to 23 “upwind” states whose emissions could contribute to pollution in “downwind” states.
The The EPA plan says would help prevent premature deaths, reduce emergency room visits, and reduce asthma symptoms by limiting the amount of smog.
Under the Clean Air Act, states get the chance to develop their own pollution control plans. Each state has an obligation under the law to be a “good neighbor,” meaning that its plans eliminate the pollution it might contribute to other states that fail to meet their obligations.
The EPA could step in to adopt its own plan, which happened last year. Three states objected to the federal government’s approach, saying in part that they did not have enough time to develop their own plans.
Ohio Attorney General Dave Yost wrote in court filings that the agency’s approach “ignored the obvious problems with trying to make the Clean Air Act a system of top-down regulation rather than the system of cooperative federalism that Congress intended.”
Yost called the policy a “disaster” because court rulings in separate lawsuits mean it’s already blocked in 12 of the 23 states it applied to, meaning it only reaches 25 percent of the emissions it seeks to regulate.
Republican-led states often complain about the EPA’s strong intrusions into environmental policy, citing federal overreach that infringes on states’ right to self-governance.
Attorney General Elizabeth Prelogar, who defended the rule, said in court filings that it is “in full force” and can “function properly” in the 11 states where it is in effect. The fact that it is currently blocked in some states does not undermine the validity of the rule as a whole, he added.
If the regulation were to be halted while litigation continues, it would “delay efforts to control pollution that causes unhealthy air in downwind states, contrary to Congress’s express directive that sources in upwind states must be responsible for their contributions to emissions” levels in downwind states, ” Prelogar wrote.