U.S. Supreme Court pushes pause on EPA’s ‘good neighbor’ rule

An inversion is beginning to set in over Utah County on Tuesday, Nov. 28, 2023. The U.S. Supreme Court pushed pause on the EPA’s "good neighbor" rule.

They say fences make good neighbors, but Utah doesn’t have a fence to stop pollution from drifting to Colorado and elsewhere.

Additionally, unlike a careless burglar breaking into your home — ozone pollution doesn’t leave DNA to identify a specific culprit.

These realities compound the struggles states face when it comes to controlling what happens within their borders as far as emissions go and where those emissions might drift.

The U.S. Environmental Protection Agency, nevertheless, set up guardrails via the “good neighbor” rule to keep the unwelcome guest at bay, a move that Utah and 10 other Republican-leaning states sued over.

Utah, in fact, appropriated $2 million in 2023 to pay for its lawsuit, which it filed in June that year. Last month, the U.S. Supreme Court ordered the federal agency to stop implementation of the good neighbor rule.

“The EPA’s proposed Ozone Transport Rule is yet another example of federal overreach. This is one that would have dire consequences for energy security and reliability in Utah. Two years ago Wyoming Gov. Mark Gordon, Idaho Gov. Brad Little and I told the EPA why the rule was deeply flawed and bad policy,” said Utah Gov. Spencer Cox. “The 10th Circuit Court of Appeals agreed and stopped the rule in Utah last summer, and I am thrilled to see the U.S. Supreme Court halt the implementation of the rule for other states impacted.”

The case, the controversy and clean air

The 5-4 vote decision put on pause a rule intended to curb emissions from power plants, which the court said should be put on hold while the litigation is pending before the federal appeals court in Washington, D.C. The majority opinion sided with industry and states who argued the law was unworkable and illegal. Critics argued if the rule was implemented, it would hasten the closure of coal-fired power plants, jeopardizing the energy grid, which is already strained in many areas of the country.

The dissent, including former President Donald Trump-appointee Justice Amy Coney Barrett, asserted the rule’s delay was unwarranted and puts at risk downwind communities subject to the harmful effects of air pollution.

Proponents of the good neighbor ozone transport regulation say it would have saved thousands of lives by requiring states like Utah to limit pollution that travels across state lines. The Southern Utah Wilderness Alliance — alongside fellow Utah nonprofit Utah Physicians for a Healthy Environment — intervened to defend the good neighbor rule and were represented by Earthjustice.

“We’re disappointed that the U.S. Supreme Court took the extraordinary step to block the EPA’s Good Neighbor Plan from going into effect — which would have reduced smog and ozone pollution — before the lower court even had a chance to evaluate the strength of conservative states’ and industry groups’ arguments,” said SUWA staff attorney Hanna Larsen. “The impacts of this preemptive decision will be felt in Utah and across the nation by increasing pollution, harming ecosystems, and threatening public health.”

The Environmental Defense Fund said the decision upended precedent, with a history going back to an opinion penned by Justice Oliver Wendell Homes in 1907 that said a sovereign should not have to endure noxious gas sourced from within another state. The dispute involved a fight between Georgia and a Tennessee copper plant over emissions.

“It is a fair and reasonable demand on the part of a sovereign that the air over its territory should not be polluted on a great scale by sulphurous acid gas, that the forests on its mountains, be they better or worse, and whatever domestic destruction they have suffered, should not be further destroyed or threatened by the act of persons beyond its control, that the crops and orchards on its hills should not be endangered from the same source,” Holmes wrote.

The fund said this year’s summer ozone season will be more severe and more dangerous because of the recent ruling by the U.S. Supreme Court.

An analysis by the University of California Gould School of Law offered that to be effective, the good neighbor rule needs all players at the table.

“The Supreme Court’s decision to hear arguments in this case may have been motivated by the fact that, given the nature of interstate ozone pollution, the good neighbor rule needs all affected states participating to effectively address interstate ozone,” said Robin Craig, an expert in environmental law at the USC Gould School of Law.

In 2015, the EPA tightened its National Ambient Air Quality Standards for ozone. The stricter standards pushed many states into noncompliance, including those like California that were already struggling with ozone issues and those on the cusp of meeting the previous standard, Craig explained.

“The EPA isn’t doing anything new legally. The difficulty is that the (the air quality standards) became more stringent,” said Craig, who also holds the Robert C. Packard Trustee Chair in Law at USC Gould.

But the National Mining Association said the EPA was acting outside of the purview of the law when it issued the controversial rule.

“No agency is permitted to operate outside of the clear bounds of the law and today, once again, the Supreme Court reminded the EPA of that fact,” said Rich Nolan, president and chief executive officer of the association. “With a stay in place, we look forward to making our case in the D.C. Circuit that this rule is unlawful in its excessive overreach and must be struck down to protect American workers, energy independence, the electric grid and the consumers it serves.”

The EPA said the rule will reduce ozone season nitrogen oxide pollution by approximately 70,000 tons from power plants and industrial facilities in 2026. By 2027, the emissions budget for power plants will reflect a 50% reduction from 2021 pollution levels, it said.