Members of the Supreme Court’s conservative majority seemed inclined on Wednesday to temporarily stop an effort by the Biden administration to curtail air pollution that drifts across state lines.
The court has in recent rulings limited the Environmental Protection Agency’s authority to address climate change and water pollution. The decision in the four consolidated cases before the justices on Wednesday, expected by June, seemed likely to deal the agency another setback.
The new cases concerned the administration’s “good neighbor” plan. Under the proposal, which initially applied to 23 states, factories and power plants in Western and Midwestern states must cut ozone pollution that drifts into Eastern states.
The justices appeared to be divided along familiar lines on whether to block the plan, which directs states to take measures meant to reduce emissions that cause smog and are linked to asthma, lung disease and premature death.
A ruling halting the plan would be provisional, as a challenge to it will continue to be litigated in an appeals court and could then return to the Supreme Court. The question for the justices was what should happen in the meantime. Even a temporary loss for the administration could suspend the plan for many months and maybe longer.
The Clean Air Act gives states an opportunity to devise their own plans, subject to approval by the E.P.A. Last February, the agency concluded that 23 states had failed to produce adequate plans to comply with its revised ozone standards. The agency then issued its own plan.
A wave of litigation followed, and seven federal appeals courts blocked the agency’s disapproval of plans submitted by a dozen states, leaving 11 states subject to the federal rule.
Three states — Ohio, Indiana and West Virginia, along with energy companies and trade groups — challenged the federal plan directly in the United States Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to put the rule on hold while the litigation moved forward, the challengers asked the Supreme Court to step in.
The application from the three states urged the justices to block the new rule in light of the appeals courts’ rulings, saying that “the federal plan is already a failed experiment” and “is but a shell of its original self.”
The E.P.A. responded that the provisional rulings on the state plans should not affect the national rule and that blocking it would have severe consequences.
“It would delay efforts to control pollution that contributes to unhealthy air in downwind states, which is contrary to Congress’s express directive that sources in upwind states must assume responsibility for their contributions to emissions levels in downwind states,” the agency’s brief said.
Judith N. Vale, a lawyer for states supporting the plan, described its practical impact at Wednesday’s argument.
“In the good neighbor provision, Congress protected downwind states from pollution emitted in upwind states,” she said. “A stay of the good neighbor rule would undermine that statutory goal and the public interest by sending ozone pollution into downwind states, including Connecticut, Wisconsin and New York, that receive substantial pollution from the particular upwind states that are currently in the rule, including Ohio and Indiana.”
Much of the argument on Wednesday revolved around the question of whether the states that remained subject to the federal plan had been harmed by its shrinking geographical scope.
Justice Sonia Sotomayor said the remaining states were not made worse off by the exclusion of the others from the federal plan. “Nothing is changing in your costs,” she told Mathura J. Sridharan, Ohio’s deputy solicitor general.
But Justice Brett M. Kavanaugh said the agency had not explained why the plan still made sense given its more limited scope, calling its justification a “goose egg.”
“They don’t have an explanation there,” he said.
Catherine E. Stetson, a lawyer for industry groups challenging the federal plan, said it would subject them to “billions of dollars in compliance over the next 12 months.”
The four consolidated cases, including Ohio v. Environmental Protection Agency, No. 23A349, reached the court by way of emergency applications, which are typically disposed of in summary fashion. The court’s decision to hear arguments in such a setting — about whether to grant a stay — was quite rare.
“This is an unusual posture for us to be in,” said Justice Elena Kagan, suggesting that it was also an unwelcome one.
Justice Ketanji Brown Jackson also expressed doubts about whether the court should render a consequential decision based on emergency applications. “I’m trying to understand what the emergency is that warrants Supreme Court intervention at this point,” she said.
“I mean, surely,” she added, “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.”
But Justice Kavanaugh said the court’s ordinary criteria for whether to put a regulation on hold were enough to decide the matter, adding that most of them presented close questions.
“Both sides have irreparable harm, so that’s a wash,” he said. “The public interest, both sides have a strong public interest in my view.” That left, he said, an evaluation of the how likely the challengers were to succeed on their underlying arguments.
