Supreme Court issues stay on EPA’s ozone plan, despite blistering dissent

Blistering

As a result, the decision and dissent that accompanied it do not even agree on what the EPA's planned regulations will actually do. The majority, in a decision authored by Justice Gorsuch, concludes that the EPA devised a system in which emissions and pollution control costs within the 23 non-compliant states would be considered to identify a point where the added costs started producing marginal changes in overall pollution.

In this view, the EPA's analysis was static, involving all 23 original states. But, as different states on that list received stays from lower courts, the plan would involve ever fewer of them, which should change the cost/benefit analysis, since the cost of pollution controls will vary based on local sources. But, the majority decided, the EPA is sticking with its 23-state system even when fewer states are involved. The decision also states that the EPA was made aware of this problem during the public comment on its proposed rule.

In the end, this means that pollution from states that may not ultimately be governed by the EPA's rules is being used to set standards for states that currently are subjected to it. As such, the majority are placing the whole plan on hold while the other cases make their way through lower courts.

The justices involved in the dissent, written by Justice Barrett, find almost none of this convincing and use rather harsh language to make that known. Barrett leads into the body of the dissent by essentially accusing her colleagues of getting the facts wrong, writing: "I will start by setting the record straight with respect to some important background." Her dissent is the first mention that so many states proposed doing nothing, and she notes that, while several of the states have gotten the regulations put on hold, none of them has seen the EPA's method invalidated yet.

The majority suggested that the EPA was warned about the problem it identified during the public comment period. But the dissent argues that the "warning" was simply two comments that used similar vague language that doesn't clearly identify any issues.

In any case, Barrett writes, the majority's supposed problem doesn't exist: "Try as it might, the Court identifies no evidence that the [federal plan's] emissions limits would have been different for a different set of States or that EPA’s consideration of state-specific inputs was anything but confirmatory of the limits it calculated based on nationwide data." In fact, the dissent notes, since oral arguments, the EPA has detailed its methodology, which clearly uses national pollution data to set the cost/benefit analysis for these 23 states.

Instead, Barrett suggests, the majority simply latched on to any instance where the word "state" was used in EPA documents. "The Court, perhaps recognizing the problem that the [federal plan's] seemingly state-agnostic methodology poses for its theory," the dissent says, "throws at the wall a cherry-picked assortment of EPA statements mentioning state data. None stick."

Not only is the majority wrong on basic facts, but Barrett argues that they based their decision on arguments the states didn't even bother to make, except tangentially during the single hearing the Supreme Court held on the matter. "One can search diligently in the hundreds of pages of applicants’ opening briefs for the Court’s theory—that EPA failed to explain in its final rule why the [federal plan's] cost-effectiveness thresholds for imposing emissions limits do not shift with a different mix of States—and be left wondering where the Court found it."

So here we are

Again, issues like the ones Barrett has identified would normally have been sorted out by lower courts during earlier trials. But the fact that the Supreme Court gave this request an emergency hearing means that there is no lower court record. It's possible that this issue will be litigated in some of the cases being brought by individual states, some of which may end up back before the Supreme Court. If not, then the continuation of this case before the DC Court of Appeals should ultimately do so.

In the meantime, the EPA won't be able to tighten up the limits on ozone-causing pollutants that cross state lines until well after the upcoming election. Limits already exist, so this doesn't mean that there are suddenly no rules, and the case doesn't significantly curtail the EPA's power to formulate regulations. But ozone pollution is a major health concern, contributing significantly to respiratory issues. So, any delay isn't good news to people suffering from asthma.