Washington • The Supreme Court temporarily put on hold Thursday an Environmental Protection Agency plan to curtail air pollution that drifts across state lines, dealing another blow to the Biden administration’s efforts to protect the environment.
The ruling followed recent decisions chipping away at the agency’s authority to address climate change and water pollution.
Under the proposal, known as the “good neighbor” plan, factories and power plants in Western and Midwestern states must cut ozone pollution that drifts into Eastern ones. The emissions cause smog and are linked to asthma, lung disease and premature death.
The ruling was provisional, but even the temporary loss for the administration will suspend the plan for many months and maybe longer.
The vote was 5-4. Writing for the majority, Justice Neil Gorsuch said the court’s ruling was modest, pausing the administration’s plan in light of developments in lower courts. He said the Supreme Court’s stay would remain in place while a federal appeals court in Washington considered the matter and, after that, until the Supreme Court acts on any appeal.
Justice Amy Coney Barrett, joined by the court’s three liberal members, issued a spirited dissent predicting that the majority had created a “yearslong exercise in futility.”
“Given the number of companies included and the timelines for review,” she wrote, “the court’s injunction leaves large swaths of upwind states free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years.”
She called one argument set out in the majority opinion “a feeble response.” Another, she said, “throws at the wall a cherry-picked assortment of EPA statements.”
“None stick,” she added.
Vickie Patton, general counsel of the Environmental Defense Fund, criticized the majority’s approach as reckless.
“The court’s extraordinary decision today to grant an emergency stay is a travesty of justice that puts the lives and health of millions of people at risk,” she said.
Patrick Morrisey, West Virginia’s attorney general, welcomed the decision.
“The country’s power grid is already stressed as it is, and now this administration is attempting to add more regulation that’s going to stress the grid even more,” he said in a statement. “This decision by the Supreme Court is correct but the EPA will keep trying to legislate and bypass Congress’ authority.”
The Supreme Court will shortly decide the larger issue of whether courts must defer to the reasonable interpretations by agencies like the EPA of ambiguous statutes enacted by Congress.
Under the Clean Air Act, states are allowed to devise their own plans, subject to approval by the EPA. In February 2023, the agency concluded that 23 states had not produced adequate plans to comply with its revised ozone standards. The agency then issued its own.
A wave of litigation followed, and seven federal appeals courts blocked the EPA’s disapproval of plans submitted by a dozen states, leaving 11 states subject to the federal rule.
That was significant, Gorsuch wrote. “Together, these 12 states accounted for over 70 percent of the emissions EPA had planned to address,” he wrote. The question, he said, was what happens “when many of the upwind states” are no longer governed by the federal plan “and it may now cover only a fraction of the states and emissions EPA anticipated?”
The answer, he said, was to put the federal plan on hold. Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh joined the majority opinion.
Barrett responded that the stays issued by lower courts of the agency’s disapproval of state plans were of little moment. While the plans “have been temporarily stayed,” she wrote, “no court yet has invalidated one.”
There was, moreover, good reason to think, she wrote, “that EPA’s methodology for calculating cost-effectiveness thresholds and imposing emissions controls did not depend on the number of covered states.”
Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson joined Barrett’s dissent.
Three states — Ohio, Indiana and West Virginia, along with energy companies and trade groups — challenged the federal plan directly in the U.S. Court of Appeals for the District of Columbia Circuit. When a divided three-judge panel of that court refused to suspend the rule 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 EPA 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’ express directive that sources in upwind states must assume responsibility for their contributions to emissions levels in downwind states,” the agency’s brief said.
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.
Barrett said it was the wrong setting in which to issue a major ruling.
“The court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits,” she wrote. “In so doing, the court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.”
The challengers, she wrote, “cannot satisfy the stringent conditions for relief in this posture.”
This article originally appeared in The New York Times.