On Wednesday, the U.S. The Supreme Court is set to consider arguments in a significant environmental case focused on the responsibility of being a considerate neighbor.
Attorneys from three states, various companies, and industry groups are set to petition the justices to halt the enforcement of a federal regulation aimed at reducing ozone air pollution. This rare occurrence marks only the third instance in over half a century where the court has agreed to hear arguments on an urgent request of this nature.
The core of the conflict lies in the Clean Air Act’s good neighbor provision, which aims to safeguard individuals from serious health issues caused by pollution drifting downwind from adjacent states.
According to Richard Lazarus, a professor at Harvard Law School, air pollution does not adhere to state boundaries.
The facts of the case
Wisconsin, New York, and Connecticut often face challenges in meeting federal ozone standards due to the cross-border drift of emissions from coal plant smokestacks, cement kilns, and natural gas pipelines.
Lazarus explained that Congress enacted the law in 1970 due to the lack of trust in states to address interstate air pollution independently.
According to Vickie Patton, who serves as the general counsel at the Environmental Defense Fund, these fundamental safeguards have the potential to preserve human lives.
Patton emphasized that a diverse range of individuals, including children, elderly individuals, outdoor workers in the summer, and asthma sufferers, face significant risks. The focus of the case is simply to urge polluters located upwind to take responsibility for their fair share.
Ohio, Indiana, and West Virginia, in conjunction with corporations such as Kinder Morgan Inc. and U.S. Steel Corp., are seeking a suspension of the good neighbor rule by the Supreme Court as they continue to challenge a ruling in the D.C. Circuit court.
The Supreme Court steps in early
In a recent statement, Stephen Vladeck, a legal expert from the University of Texas who has written extensively on emergency actions taken by the Supreme Court, highlighted that the justices have only considered arguments at this stage in two other cases, both related to vaccine mandates amid the COVID-19 crisis.
He mentioned that the good neighbor case does not pose similar challenges.
Vladeck questioned the urgency of the situation, pointing out that many federal policies with significant implications and stakeholders are at play. The special treatment given to this case is not clearly justified.
Historically, the Supreme Court typically serves as the final arbiter in a legal case, coming into play once it has traversed through the lower courts and all relevant facts and arguments have been presented.
Vladeck pointed out that there has been minimal progress in this case so far. The only development in the legal proceedings is that the D.C. Circuit, a federal appeals court, declined to grant the same request that is now being made to the Supreme Court – essentially, to halt the rule at the outset of the litigation.
The rule in question
Attorneys representing the states and businesses contesting the good neighbor regulation opted not to comment prior to the hearings. In their legal documents, they criticize the EPA rule as being ineffective and significantly weakened.
The initial plan was intended for 23 states, however, it has been put on hold by lower courts in approximately half of them due to various reasons in different legal cases.
The attorneys argued that it is unfair for states to bear the financial burden of what they believe is an illegal requirement imposed by the federal government. They condemned the EPA for its authoritative enforcement of the regulation, calling it a top-down strategy.
Environmental advocates argue that although the new rule is currently in effect and providing protection to residents in several states, a significant portion of its obligations will not take effect until 2026. This delay allows major polluters a grace period of two years to make necessary preparations.
To secure a temporary halt at the Supreme Court, Lazarus from Harvard Law School emphasized that the states contesting the rule must demonstrate a strong likelihood of success and prove they are experiencing irreparable damage.
A skeptical Supreme Court
Despite this, Lazarus noted that regulators and environmental advocacy groups have faced significant challenges in the Supreme Court recently. Initially, the justices invalidated the Clean Power Plan, followed by limiting the EPA’s authority under the Clean Water Act. Additionally, their stance appeared doubtful in a recent case concerning regulations within the fishing industry.
He remarked that it appears the court is determined to significantly reduce federal environmental regulations in a forceful manner.
Patton, a member of an environmental organization that filed an amicus brief in the case, stated that she intends to closely monitor the proceedings.
Patton expressed the importance of industries being good neighbors by abiding by our country’s clean air laws, and he emphasized his hope that the Supreme Court will not dismantle these protections.
The justices have not set a definite timeline for making a decision.
