On February 21, 2024, the United States (U.S.) Supreme Court will hear arguments in Ohio v. EPA, a case on the U.S. Environmental Protection Agency’s (EPA) ‘good neighbour plan’, which aims to protect downwind states from ozone pollution.
The case focuses on the U.S. Clean Air Act. Under the provisions of the Clean Air Act, the EPA sets air quality standards using the latest scientific principles. States then issue their individual plans as to how they will achieve the established standards.
The standard at issue in this case is the ‘National Ambient Air Quality Standard’ for ozone. Regulating ozone is difficult, since it is a combination of emitted pollutants that combine in the Earth’s atmosphere to become ozone. Hence, it requires regulation of “sources of volatile chemical compounds and nitrogen oxides”.
However, the EPA identified a major issue with this. States that are downwind are at a disadvantage, since polluted air blows in from other states, over which they have no control. As such, upwind states interfere with downwind states’ plans to curb ozone emissions. To this end, U.S. Congress included the ‘Good Neighbour Provision’ in the Clean Air Act.
To action the Good Neighbour Provision, the EPA implemented a requirement for a Good Neighbour Plan, which would apply to the 23 upwind U.S. States. In early 2023, the EPA had rejected the plans that 21 out of 23 States had drafted themselves.
Ohio v. EPA: Procedure vs. Merits
The issue before the U.S. Supreme Court is not to decide the merits of the case (e.g. the Supreme Court will not be making a ruling on which of the two parties should prevail). Rather, the case is about halting implementation of the EPA’s plans while the case remains in Court. The substantial question in the case remains in lower courts.
However, experts have said although this seems to be a merely procedural matter on its face, it is far from it. One of the criteria for the U.S. Supreme Court to decide on a stay is whether the Court thinks the challengers are likely to win in the lower courts. Granting the stay therefore sends a strong implicit message that the Court thinks the States have a good case against the EPA.
It is suspected there is a political dimension to the ruling as well. Usually, The U.S. Supreme Court will act on requests for stay, such as this one, within a matter of days of filing. This request had been filed in October 2023, and only now comes before the Court. Moreover, cases of this kind are normally decided without oral arguments. The U.S. Supreme Court has been criticised in the past for rushing through these procedural questions without giving reasons, so perhaps they are attempting to silence their critics.
However, arguments to the contrary are also made, with Sam Sankar, Earthjustice’s Senior Vice President for Programs explaining that applications for stay are usually used for actual emergent situations. Given that the Supreme Court waited several months before even considering the application, it seems that there is no real emergency here. He suspects the petitioning states are “just asking the Court to second-guess EPA’s decision on a legally complex issue involving exhaustive scientific analysis”. He furthermore finds it “shocking” that the U.S. Supreme Court hasn’t already denied granting the stay, since the petitioners didn’t identify any legal flaws required to grant the petition.
Past Climate Cases Before the U.S. Supreme Court
Over the past couple of years, many environmental claims before the U.S. Supreme Court of the have failed – including cases on greenhouse gas emissions and Clean Water Act protections.
In June 2022, in West Virginia v. EPA, the U.S. Supreme Court held that the EPA does not have the authority to impose a cap on power plants’ carbon dioxide emissions. Then in May 2023, in Sackett v. EPA, the Court overturned wetland protections under the Clean Water Act. Particularly the Sackett v. EPA decision led to much criticism over the Court’s decision-making, which has been said to lack ‘judicial restraint’.
What is at stake?
The EPA has detailed the health effects of ozone pollution on its website. They list health effects including coughing, breathing difficulties, inflamed airways, lung diseases, and asthma attacks. This applies to healthy people but is visible much more clearly in those with pre-existing lung diseases such as asthma. Those who have been exposed to ozone for longer periods of time, can develop asthma. The EPA also states, “Children are at greatest risk from exposure to ozone, because their lungs are still developing, and they are more likely to be active outdoors”.
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