WASHINGTON (CN) — The Supreme Court’s emergency docket will come into play at oral arguments next week as the justices review whether states and industry groups can avoid federal regulations aimed at reducing cross-state air pollution.
Unlike most of the cases on the justices' merits docket, this one won't be settled after Wednesday's argument session. Instead, the justices will decide if government regulations can be put on hold ahead of that eventual final ruling.
It’s a highly unusual move, used in recent years only to review a Texas abortion ban and the Biden administration’s Covid-19 vaccine and testing mandate.
Now, states and industry groups will get the rare opportunity to prove environmental regulations too deserve the heightened review at such an early stage of litigation.
“The Supreme Court is saying maybe we need to stay this rule before it even comes into effect,” said Sam Sankar, the senior vice president for programs at Earthjustice, in a press briefing. “It's sort of saying look, these things are guilty until proven innocent, and that's a new way for courts to be treating environmental regulations.”
Ohio, Indiana and West Virginia want to join a dozen other states in dodging the Environmental Protection Agency’s “good neighbor” rule, enacted to lower emissions in upwind states to prevent their air pollution from drifting toward their downwind neighbors.
The states were joined by groups representing the oil and gas industry, paper and wood product makers and steel manufacturers in their request to block the agency’s proposed emissions cuts that they claim will wreak havoc on the economy and electric grid.
After spending a month debating their applications, the justices decided they wanted to hear arguments over whether a pause on the rule was warranted.
Advocates for the rule claim the states and industry groups want to take advantage of the opportunity presented by the Supreme Court’s emergency docket, allowing them to pause the requirements before any lower court has had the chance to review them.
“What they're doing is something that's a little more extraordinary, which is seeking to make use of the Supreme Court's emergency docket to get the benefit of a stay of this rule that the D.C. Circuit considered and denied, and they're trying to do this without the benefit of full merits briefing on these issues and without any court below having duly considered and ruled on the merits of the challenge,” said Katie Nekola, general counsel at Clean Wisconsin.
The good neighbor rule was born out of the Clean Air Act’s charge to limit pollutants detrimental to public health. The EPA assumes a federal responsibility to uphold these standards by requiring states to submit plans to meet their air quality goals. If the agency determines a plan is inadequate, the EPA can issue a federal plan instead.
The Clean Air Act recognized that transient air pollution doesn't adhere to state boundaries, leaving some states to bear the burden not only of their own toxins, but of their neighbors' as well. The good neighbor provision requires state pollution plans to prevent activities within one state from emitting significant pollution costs for another state.
Since the 1990s, the EPA has used the good neighbor rule to reduce the cross-border spread of nitrogen oxide — commonly known as smog. Breathing in smog is a health hazard linked to serious illnesses like asthma and cancer. Although ozone is particularly harmful to the lungs, it can also travel through the bloodstream and damage other critical organs.
Health professionals are warning the justices that pausing the government’s restrictions on these pollutants even in the interim could lead to serious harm.
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