Supreme Court Corrects EPA Opinion After Gorsuch Confuses Laughing Gas With Air Pollutant

Topline

The Supreme Court issued a corrected version Thursday of its opinion in an environmental case after Justice Neil Gorsuch, who penned the court’s opinion, confused the air pollutant at issue with nitrous oxide—also known as “laughing gas.”

Supreme Court Justice (then nominee) Neil Gorsuch laughs during his confirmation hearing before the Senate Judiciary Committee on March 20, 2017. Copyright 2017 The Associated Press. All rights reserved.

Key Facts

The court revised its opinion in Ohio v. Environmental Protection Agency, a 5-4 ruling released Thursday in which the court temporarily blocked an EPA policy requiring “upwind” states to reduce air pollution that travels down to “downwind” states and affects the air quality there.

Gorsuch—and his clerks, who would have helped prepare the opinion—referred five times in his opinion to “nitrous oxide,” which is a greenhouse gas that’s more commonly known as an anesthetic and referred to as “laughing gas.”

The opinion actually meant to refer to “nitrogen oxide,” an air pollutant that the EPA’s policy at issue was aimed at reducing.

The court issued a corrected opinion that fixed the error throughout the ruling, after the mistake gained traction on social media.

The mistake was seized on by critics of the court’s conservative majority, with writer Elie Mystal noting on X, “Remember folks, Neil Gorsuch thinks that he should have the final say on environmental regulations, not the experts at the EPA.”

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What To Watch For

The court will continue issuing opinions on Friday and Monday before its term wraps up for the summer, with rulings still to come in cases on social media “censorship” laws, the power of federal agencies and whether former President Donald Trump is immune from criminal charges, among other cases. It’s still unclear if Monday will be the final day the court issues opinions, or if additional days will be scheduled.

Surprising Fact

Gorsuch’s mother, Anne Gorsuch Burford, previously led the EPA during Ronald Reagan’s presidency. She ultimately resigned from the position after a controversial two-year tenure that included massive budget cuts, slashing regulations and a scandal over the Superfund hazardous waste removal program that led to her being held in contempt of Congress.

Tangent

The court has issued multiple other revised opinions to correct errors this term, including on two other opinions that came out on Thursday alone. An opinion on Purdue Pharma’s bankruptcy settlement was edited to fix a typo in the name of the Sackler family, for instance, and an updated ruling on administrative law judges similarly revised multiple typos, including Gorsuch referring to the Securities and Exchange Commission as the Security and Exchange Commission.

Key Background

Gorsuch was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh in his opinion Thursday against the EPA’s “Good Neighbor” policy, while Justice Amy Coney Barrett joined liberal justices in dissenting. The EPA established its “Good Neighbor” policy as a way to improve air quality in downwind states, and while states were first able to submit their own policies to comply with the plan, the agency ruled in 2023 that 23 states’ plans were not adequate. The EPA thus imposed its own federal plan on those states to ensure they met the standards, leading states to go to court. The Supreme Court’s ruling blocks that federal plan from taking effect, meaning states don’t have to comply with the policy—but only while litigation over whether or not it’s lawful continues to play out, meaning it could still be implemented in the future. Gorsuch wrote for the court’s majority they were blocking the plan because they believed the states challenging it are likely to prevail in court—which Barrett disagreed with in her dissent, arguing the court’s argument for blocking the policy is “based on an underdeveloped theory that is unlikely to succeed on the merits.” If the “Good Neighbor” plan is allowed to take effect, the EPA projected it would prevent approximately 1,300 premature deaths in 2026 alone and cut emissions from power plants by 50% by 2027, compared with 2021 levels.

Further Reading

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