June 27, 2024
Ohio v. EPA, Nos. 23A349, 23A350, 23A351, and 23A384 – Decided June 27, 2024
Today, in a case that further highlights the significance of the Court’s emergency docket for challenging agency rules, the Supreme Court (5-4) granted Ohio and several other applicants a stay that suspends the EPA’s “Good Neighbor” plan regulating some states’ emissions.
“Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument….”
Justice Gorsuch, writing for the Court
Background:
The Clean Air Act directs each state to develop plans to implement air-quality standards. If a state’s plan fails to meet the relevant requirements, the EPA can reject that plan and impose a federal plan instead. One requirement in the Act is a “Good Neighbor” provision, which requires upwind states to reduce emissions to account for pollution exported to downwind states. In 2022, the EPA proposed to reject the plans of 23 upwind states whose emissions it said would have an effect on downwind states. The EPA proposed a single, coordinated federal plan for all 23 states. The EPA ultimately disapproved 21 states’ plans. Before the federal plan was final, several courts of appeals held that the EPA had likely violated the Act in disapproving certain states’ plans and granted stays of the disapprovals pending review. In June 2023, the EPA nonetheless finalized the proposed federal plan—the “Good Neighbor” plan. Since then, several other states have obtained stays of the EPA’s state-plan disapprovals. The Good Neighbor plan now applies to only 11 states, regulating far less emissions than the plan’s stated intent.
Ohio and several other states still subject to the federal plan, as well as several industry participants, challenged the plan in the D.C. Circuit and sought a stay pending that court’s review. After the D.C. Circuit declined to stay the federal plan, several of the states and industry participants applied to the Supreme Court for a stay, arguing that the Good Neighbor plan violates the Administrative Procedure Act because the EPA failed to consider how the federal plan would work if it applied to fewer than 23 states.
Issue:
Are applicants entitled to a stay of the Good Neighbor plan?
Court’s Holding:
Yes. The applicants are likely to succeed on the merits because the Good Neighbor plan does not comply with the APA’s requirement that the agency provide a reasoned explanation, and applicants have demonstrated that they face irreparable harm justifying a stay of the plan pending final judicial review.
What It Means:
The Court’s opinion is available here.
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This alert was prepared by associates Zachary Tyree, Aly Cox, and Aaron Gyde.
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