SCOTUS Stays Enforcement of EPA’s “Good Neighbor” Air Pollution Rule (Updated)
In the first of his two opinions today, Justice Gorsuch wrote for a five-member Supreme Court majority in Ohio v. EPA, granting the applications for a stay of the Environmental Protection Agency’s regulation protecting downwind states from upwind emissions of smog precursors under the Clean Air Act’s “Good Neighbor Provision” by protecting downwind. Justice Gorsuch was joined by the other male justices. Justice Barrett dissented, joined by the other female justices.
The Court’s decision in Ohio v. EPA was simultaneously modest and aggressive. It was modest insofar as imposed the longstanding administrative law requirement that agencies adequately respond to comments during the rulemaking process. According to the majority, the EPA failed to explain whether and how it would have to modify the regulation to account for the possibility that some states initially subject to the rule could drop out. The EPA rule at issue imposed limits on emissions of nitrogen oxide (NOx) in 23 upwind states, but some states obtained temporarily relief from the rule’s requirements by challenging the EPA’s disapproval of their respective state implementation plans.
As Justice Gorsuch saw it, the EPA was well aware of the possibility that not all 23 states would ultimately be subject to the rule, but did not provide an adequate explanation of whether and how this could affect the respective emission reduction requirements imposed on the states that remain, and that this issue had been flagged in the comment period. In this regard, the decision imposed the traditional requirement that agencies respond to comments submitted during the rulemaking process and fully explain the bases for its actions. It faulted the EPA for a procedural failings–a lack of fulsome explanation in response to a relevant comment–and not for the substance of the rule.
While the Court’s decision was narrow in this respect, the Ohio v. EPA decision was also quite aggressive in that it came to the Court on the “shadow docket” in the form o
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