WASHINGTON (CN) — The Supreme Court’s review of the government’s attempt to reduce cross-state air pollution on Wednesday devolved into a fight over the high court’s authority to jump into the case without the review of any other court.
“Surely, the Supreme Court's emergency docket is not a viable alternative for every party that believes they have a meritorious claim against the government and doesn't want to have to comply with a rule while they're challenging it,” Justice Ketanji Brown Jackson said.
Jackson, a Biden appointee, said she was worried about the standard the court was setting by entertaining an emergency application even though they have yet to lose in the lower courts.
Several Republican-led states and industry groups asked the justices to block the Environmental Protection Agency’s good neighbor rule, which aims to limit emissions in upwind states to prevent their air pollution from drifting toward their downwind neighbors.
Cases filed on the emergency docket are decided without oral argument or explanation for the justices’ order. The Supreme Court made the extremely unusual decision to hear arguments in this case.
The liberal justices’ aversion to deciding a case in this posture outshined the likely outcome in the case: putting the good neighbor rule on pause.
Justices Sonia Sotomayor and Elena Kagan, both Obama appointees, joined Jackson’s outrage that the court would review the merits of the states’ claims in this posture. Sotomayor questioned why the justices should divert from the normal rules, ruling without proper lower court action.
“Is it an inversion of normal rules when you're seeking expedition to bypass the very court who's going to make the substantive decision and not even ask them to expedite and rush to us on an incomplete record?” Sotomayor asked.
Kagan said the states skipped all the hoops the court employs to prevent an issue from reaching the high court before it is ripe for review.
“The idea that you can be here and be demanding emergency relief just because states have kicked up a lot of dust seems not the right answer to me,” Kagan said.
Trump-nominated Justices Brett Kavanaugh and Neil Gorsuch rebutted these claims, arguing the court had to consider the merits of the application before them to decide if a stay was warranted.
“It comes down to the likelihood of success on the merits,” Kavanaugh said. “We can't do that without looking at the merits, right?”
Developed under the Clean Air Act, the good neighbor rule targets pollutants detrimental to public health. These pollutants include nitrogen oxide — commonly known as smog — which can result in health hazards like asthma and cancer.
The EPA updated its air quality standards for ozone levels in 2015. States were instructed to come up with new plans for how to meet those goals. The EPA found many states planned on taking no action to reduce their emissions to benefit their downwind neighbors, leaving the agency to implement a federal plan for 21 states to comply with the new standard.
A dozen states have successfully challenged the government’s disapproval of their plans. Ohio, Indiana, and West Virginia, however, brought a case to challenge the good neighbor rule itself.
“We wanted a rule that affects the entire country to be addressed in the first instance as quickly as possible so that we can avoid the sorts of irreparable harm that we are currently suffering,” said Mathura Sridharan, Ohio’s solicitor general.
Ohio told the court that states and industries would face serious harm if the good neighbor rule were to continue to be implemented. Although many of the government’s targets do not kick in until 2026, the states claim the action to meet those goals begins now.
The conservative wing of the bench took issue with the government’s decision to provide a comprehensive plan for emissions in 23 states instead of offering individualized proposals. The majority suggested that the dozen states that already secured a pause on implementing their reduction plans threatened to harm the 11 states where the rule still applied.
The government fought the idea that the EPA did not individualize requirements for each state. While the EPA’s plans had been blocked in many states, the government argued more stays had been offered in its favor. The government urged the court to uphold the rule, citing the interest in decreasing emissions in the downwind states.
“To stay the rule in its entirety based on some theoretical possibility that the contours of an 11-state rule might have been somewhat different if EPA had anticipated all the stays would be terribly unfair to the downwind states,” said Malcolm Stewart, deputy solicitor general at the Justice Department.
The justices could issue an order on the emergency application at any time.
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