As the U.S. Supreme Court Wednesday (Feb. 21) held oral arguments on the legality of the Environmental Protection Agency’s “good neighbor” policy to limit upwind states from polluting downwind states, two legal constructs dominated the discussion: “severability” and the court’s “emergency docket.” The case is “Ohio et al v. EPA” brought by several states and joined by Kinder Morgan natural gas firm, the American Forest & Paper Association, and U.S. Steel.
Severability refers to provisions that allow the remainder of legislation to remain in effect if parts of its other provisions are dropped or found illegal. Emergency applications are cases that petitioners bring to the high court, bypassing lower court action.
The case before the court involves an environmental issue dating back nearly 20 years. What action can EPA take when pollution from an upwind state – Ohio, for example – which has an EPA approved “state implementation plan” to reduce ozone-causing oxides of nitrogen from power plants or steel mills nevertheless puts a downwind state – such as Connecticut – out of compliance?
The George W. Bush, Obama, and Biden administrations have all wrestled with the difficult question, as has the Supreme Court. According to a Harvard Law history, the cross-state ozone issue has been litigated some 90 times in the federal courts since first EPA first attempted regulations in 2005.
The current case involves an April 2022 “Good Neighbor Plan,” implemented a year ago involving 23 states upwind states that were in compliance, but were putting downwind states out of compliance. EPA’s plan would invalidate the uwind state implementation plans, imposing a federal implementation plan. Later, EPA reduced the number of states it would impose a federal implementation plan to 11.
After a flurry of cases were filed in federal courts, the state and industry plaintiffs last October asked the Supreme Court to take up the case long before it had been adjudicated at the lower court levels. They also asked the court to stay the EPA rules pending the review.
The court didn’t decide whether to take the case, but scheduled oral arguments. [same-day oral arguments transcripts are available from the court]The severability issue came up immediately. Arguing for the upwind states, Mathura Sridharan of the Ohio Solicitor General’s office said, “The plan now regulates under half of the states and a quarter of the emissions that the EPA originally set out to regulate. Under this fractured plan and without a stay, the remaining states and their industries face serious harm.”
Justice Clarence Thomas commented, “Well, it seems that your argument is dependent on whether or not the original plan was interdependent and required all the states to be in.” Justice Sonia Sotomayor said, “And to the extent that the other states dropping out don’t increase the cost for any of the remaining states, they — their allotment remains the same regardless of how many people are participating. So I don’t see how you’re raising an argument, frankly, not for yourself because nothing’s changed.”
Sridharan argued that EPA’s severability language in the regulations was inadequate. Justice Brett Kavanaugh asked her if she was arguing that the severability was “not adequately explained in terms of how the subset of states would work. Is that what you’re saying?” She replied that it “is not just a failure to explain; it just blows past the problem. It is, at best, boilerplate.”
Justice Elena Kagan said, “The way I remember your application, you — very high level of generality about interdependence and collective responsibility and so forth, but you gave us really nothing to allow us to say, well, how would this have been different if it had been 13 rather than 21?”
Kagan also raised the issue of bypassing the lower courts. “No court has looked at the kinds of questions that you’re raising here and the kinds of questions that we asked you to discuss. Not a single court has addressed that issue,” she said. “And yet here we are on papers that also do not address the issue trying to figure that out.”
Justice Ketanji Brown Jackson said, “It’s fairly extraordinary, I think, to be asking the Court to decide this matter when you haven’t even lost below in terms of what is before the D.C. Circuit, and, in fact, my understanding is that you haven’t even briefed this argument yet in the D.C. Circuit. So I’m trying to understand what the emergency is that warrants Supreme Court intervention at this point.”
Later, Justice Jackson commented, “So my understanding is that you actually asked the D.C. Circuit to delay merits briefing in this case, and I think that’s the opposite of what I would have expected if you are actually suffering irreparable harm. You know, if you’re suffering, I would think you’d want the D.C. Circuit to be moving as quickly as possible.”
What’s the takeaway from the oral arguments? There is an aphorism attributed variously to Danish Nobel Prize physicist Niels Bohr and New York Yankee catcher and great American philosopher Yogi Berra: “Prediction is difficult, especially about the future.”
That applies to most, but not all, Supreme Court decisions, and most clearly to opaque, convoluted disputes. This court has not been warm to environmental regulation, but that does not mean a slam-dunk decision for the plaintiffs. The court may decide it makes more sense to let the D.C. appeals court weigh in. Stay tuned.
–Kennedy Maize