US supreme court puts hold on EPA attempt to reduce pollution that drifts across states
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Conservative bloc
Alito – Majority
Barrett – Minority
Gorsuch – Majority
Kavanaugh – Majority
Roberts – Majority
Thomas – Majority
Liberal bloc
Jackson – Minority
Kagan – Minority
Sotomayor – Minority
The US supreme court has decided to put a hold on an attempt by the Environmental Protection Agency (EPA) to reduce harmful air pollution that drifts across state lines.
The conservative-dominated court has granted a temporary halt to the EPA rule while a lower court challenge to it plays out, siding with three states – Ohio, West Virginia and Indiana – and industry allies that are attempting to derail requirements that prevent pollution from billowing into neighboring states.
A 5-4 majority of the court, with Amy Coney Barrett joining the three liberal justices in dissent, decided that the EPA “offered no reasoned response” to concerns from upwind states over changes in their future obligations under the plan.
“The court grants the states’ application to put the rule on hold while the case proceeds in the lower courts,” the majority ruled, adding that it was likely the EPA would lose its case in the lower Washington DC circuit court. Barrett, in her dissent, wrote that the court “justifies this decision based on an alleged procedural error that likely had no impact on the plan”.
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The supreme court took up an emergency request by the three states to hear the case, thereby fast-tracking it for oral arguments that took place in February. The decision to side with the challenge to the EPA rules, which environmental groups have called “extraordinary, premature and harmful”, threatens the future of what is known as the US’s “good neighbor” pollution regulations.
“Giving corporate polluters a pass to keep prioritizing profits over people is a devastating outcome for public health, especially as we prepare for a summer that could be one of the worst smog seasons on record,” said Holly Bender, chief energy officer at the Sierra Club.
Bender said that the decision sets a “dangerous precedent” by allowing polluting industries to get emergency hearings in the supreme court. “Today’s decision is not only harmful to communities breathing polluted air, but to democracy itself,” she added.
Representatives of heavy industry and mining welcomed the ruling, meanwhile. “We’re pleased that the supreme court recognized the immediate harm to industry and consumers posed by this reckless rule,” said Rich Nolan, president of the National Mining Association.
The program, first drawn up by the EPA in 2015, is designed to prevent “upwind” states from causing air pollution that flows to “downwind” neighbors. The primary target of the regulation is ground-level ozone, which forms smog that causes an array of health problems.
When fully implemented, the EPA estimates it will save thousands of lives and reduce the number of asthma attacks by a million each year. It is already in place in 11 states, which saw a collective 18% cut in nitrogen oxide, the gas that helps create smog, last year.
Under the plan, states have to submit proposals to cut pollution from power plants and other industrial facilities but 21 failed to do so, resulting in the EPA stepping in to set new standards. This triggered a legal challenge from the trio of midwestern states that create much of the pollution that then blows to their north-eastern neighbors.
The states have claimed that the regulations are too onerous and will strain their power grids. Proponents of the rules point to the public health benefits. The recalcitrant states “refused to even try” to cut their pollution, to the detriment of other states, according to Robin Craig, an expert in environmental law at the University of Southern California.
“So people who live in downwind states [roughly the north-east states] might not be able to enjoy the air quality that the EPA deems requisite to protect public health not because of their own failures, but because south-eastern and midwestern states don’t want to crack down on their major emitters like coal-fired power plants,” Craig said.
The decision by the supreme court is the latest that has gone against established environmental protections. In other recent rulings, the court ordered the EPA to scale back clean water protections, while another prevented the agency from formulating a wide-ranging plan to cut pollution from coal-fired power plants.
Charles Harper, senior power sector policy lead at Evergreen, said that the supreme court is showing “that it is increasingly substituting its own rightwing politics for the scientific expertise at federal agencies”.