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Will SCOTUS Decide in Favor of Polluters Over Public Health in Smog Case?

More than 100 million people in the US live in counties that receive an “F” grade for unacceptable levels of smog.

An aerial view of Kyger Creek Power Plant in Gallia County, Ohio.

In an unusual hearing off the notorious “shadow docket,” the Supreme Court heard oral arguments on Wednesday in a case that threatens to freeze the Environmental Protection Agency’s (EPA) plan for cracking down on harmful air pollution that crosses state lines and contributes to smog in communities across the country.

The EPA updated federal smog standards in 2015 to ensure cleaner air nationwide, but eight years later, the agency is still wrangling with states over plans to reduce pollution and meet the standard. Now, industry groups, fossil fuel companies and three states — Ohio, Indiana and West Virginia — are asking the Supreme Court to issue a stay on the EPA’s national smog control plan while legal challenges wind through lower courts.

Various lawsuits against the EPA argue the smog reduction plan is a “power grab” that would put undue pressure on the electric grid, but for environmentalists and pollution watchdogs, the legal challenges are just the latest effort to undermine public health protections under a conservative judiciary. More than 100 million people live in 124 U.S. counties that receive an “F” grade from the American Lung Association for unacceptable levels of smog, also known as ground-level ozone.

“This case serves as another opportunity for this radical, right-wing Supreme Court to rule in favor of powerful industry polluters over the safety and welfare of the American people,” a team of analysts at the Center for American Progress recently wrote.

Air pollution knows no borders, and the Clean Air Act requires “upwind” states to ensure that pollution emitted within their borders does not cause “downwind” states to run afoul of federal pollution limits.

After the EPA updated smog standards in 2015, the agency asked each state to submit plans detailing how polluters would be regulated in order to comply. Twenty-one mostly red-leaning states submitted implementation plans declaring that existing pollution controls were adequate, and no changes would be made. Two states did not submit implementation plans, according to the Congressional Research Service.

In 2023, the EPA disapproved of the state implementation plans and was required by law to create a federal plan in their place. The result is the “good neighbor plan” to reduce air pollution in the 23 states before it drifts over state lines and impacts those downwind. It leverages existing technology already installed at fossil fuel-burning power plants to lower emissions in 22 states and sets new standards for industries such as petrochemical refineries, natural gas pipelines and waste incinerators in 20 states that would go into effect in 2026.

The EPA and state partners have implemented such “good neighbor” plans each time smog standards were updated since the 1990s — but not without controversy. The regulations inspired decades of legal fights as coal power plants and other polluters in upwind states contributed to acid rain, smog and respiratory disease in downwind states.

Industry challengers argue that the EPA’s current “good neighbor plan” would be too costly or even “flat-out impossible” to meet the standards in time, but attorneys for the EPA, environmental groups and multiple downwind jurisdictions argue the industry is only dragging its feet on investing in pollution controls and the Supreme Court should stay out of it.

Downwind states defending the EPA smog plan include Wisconsin, Maryland, New Jersey, New York, Pennsylvania, Delaware, Illinois, Connecticut and Massachusetts — many of the same states that complained in the past when confronted with the combination of urban traffic fumes and air pollution from industries regulated by their neighbors.

If the Supreme Court grants petitioners a stay and freezes the latest smog plan, upwind states are expected to produce 70,000 additional tons of smog-creating nitrous oxide by the peak of the 2026 smog season, causing up to 1,300 premature deaths each year and increased hospital visits for thousands of people with asthma or other respiratory conditions, according to the EPA.

Along with industry and trade groups, multiple states challenged the EPA’s decision to reject their smog implementation plans — the same implementation plans that made no updates or changes to meet the 2015 ozone standards — and circuit and appellate courts stayed the issue in 12 states without ruling on the merits of the lawsuits.

That means the EPA’s “good neighbor plan” currently only applies to 11 states, representing about 25 percent of the air pollution that regulations are targeting under the Clean Air Act. With the smog reduction plans in other states on hold, attorneys for Ohio, West Virginia and Indiana joined industry and trade groups in petitioning the D.C. Circuit Court of Appeals for a stay that would freeze the “good neighbor plan” in its entirety.

More than 100 million people live in 124 U.S. counties that receive an “F” grade from the American Lung Association for unacceptable levels of smog.

After a federal panel rejected the petition 2-1 in September, the EPA’s challengers then petitioned the Supreme Court, which placed the case on the “emergency” or “shadow docket” to expediate a ruling.

The Supreme Court typically uses the “shadow docket” to expedite decisions that fall outside the merits of a case so it can quickly be sent back to lower courts without oral arguments and lengthy rulings. However, the court invited oral arguments over the “emergency” petition to freeze the EPA’s smog reduction plan, a sign the justices view the issue as significant to the public.

“Only a few months in, the federal plan is already a failure,” the petitioners wrote, pointing to the ongoing legal disputes over the smog reduction plans between the EPA and upwind states.

However, during the oral arguments, liberal Justices Elena Kagan and Sonia Sotomayor appeared skeptical of the upwind states’ argument that the pollution calculations behind the EPA smog plan are arbitrary now that 11 states are not participating due to stays issued by lower courts.

The EPA argued that downwind states are harmed by pollution drifting from upwind states, both in terms of health impacts and cost of compensating for upwind pollution to meet their own smog reduction goals. Attorneys for the EPA argued that industries in many downwind states are already using the same pollution controls, and the regulations are designed to push upwind states to catch up, not to “innovate” new technology.

Still, Justice Brett Kavanaugh and other conservatives appeared to accept the upwind states’ arguments that their industries would be harmed by the costs of using pollution controls to reduce smog, putting industry profits on par with public health.

With a conservative majority on the court, the fate of the smog plan remains in question. While it will likely be up to lower courts to decide whether the plan is legal, a stay from the Supreme Court would push back the EPA’s effort to reduce smog back at least another two years, more than a decade after the federal smog standards were introduced.

Solicitor General Elizabeth Prelogar, who represents the EPA, argues in her reply brief that freezing the “good neighbor plan” with a nationwide stay would “significantly harm the public interest” by delaying efforts to control “unhealthy air in downwind states.” Freezing the plan before lower courts have ruled on the merits of the lawsuits against the EPA’s smog program doesn’t make sense, Prelogar argued.

“Applicants contend that the circuit-court stays of some state-plan disapprovals in separate litigation undermine the Rule,” Prelogar wrote. “But the validity of those disapprovals is not the subject of this suit and has not been finally determined by any court.”

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