Good neighbor? Polluting states want Supreme Court to pause Biden's plan to reduce smog

WASHINGTON − A showdown between states fighting pollution controls and states whose residents breathe their smog will hit the Supreme Court this week as it considers the Biden administration's controversial "good neighbor" plan to reduce ozone.

Ohio, Indiana and West Virginia want to pause the administration's attempt to combat smog-forming pollution that drifts into other states. But nine other states say a pause will exacerbate asthma and other health concerns for their residents and burden them with the high expense of pollution controls.

That’s the trade-off facing the Supreme Court on Wednesday when it considers the request from the three states and from industries to halt enforcement. The D.C. Circuit Court of Appeals declined to put the plan on hold while its legality is being challenged.

One of the most widespread pollutants in the United States, smog is also one of the most dangerous, according to the American Lung Association. It causes breathing difficulties, worsens lung diseases and shortens lives.

More than 100 million Americans live in counties with repeated instances of unhealthful ozone levels, the main component of smog, according to the association’s latest report.

Prep for the polls: See who is running for president and compare where they stand on key issues in our Voter Guide

A repeat of Obama's signature climate change policy, killed by Trump?

Clean air advocates fear a repeat of what happened to the Obama administration’s signature climate change policy. The Supreme Court put the Clean Power Plan on hold while it was being challenged, a delay that later allowed the Trump administration to scrap the plan.

“The Supreme Court’s taken a particular and distressing interest in environmental laws,” said Sam Sankar, senior vice president of the environmental group Earthjustice. “It's sort of saying, `Look, these things are guilty until proven innocent.’ And that's a new way for courts to be treating environmental regulations.”

The states challenging the regulations say they shouldn’t have to bear the cost of complying with what they call a “power grab” by the Biden administration. They argue the “Good Neighbor Plan” requires an excessive amount of pollution control and will eventually be struck down by the courts.

“The plan inflicts irreparable economic injuries on the states and others every day it remains in effect,” lawyers for Ohio, Indiana and West Virginia told the court.

Meanwhile, the increased reduction requirements are already on hold in 12 of the 23 affected states. Those states are separately challenging in circuit courts the Environmental Protection Agency’s rejection of their preferred pollution control plans.

The Biden administration imposed the “Good Neighbor Plan” on large industrial polluters in 23 states last year after rejecting 21 state proposals as ineffective. Two other states failed to submit a plan.

The federal program, the EPA told the Supreme Court, “strikes a proper balance between the interests of upwind and downwind states.”

Since the 1990s, the government has used "good neighbor" rules to take into account that pollutants can travel hundreds of miles, causing a significant share of the pollution in another state.

In Connecticut’s Fairfield County, for example, ozone-forming emissions from upwind states are responsible for as much as 57% of the area’s ozone, according to a brief filed by the downwind states of New York, Connecticut, Delaware, Illinois, Maryland, Massachusetts, New Jersey, Pennsylvania and Wisconsin.

Though many upwind states can still use low-cost, widely available pollution control equipment, they argue, options are more expensive for states that are already heavily controlling their own emissions.

New York, for example, already requires controls that cost up to $5,500 per ton of pollutants reduced compared with the $1,600 per ton cost of controls required in the near term for sources in Ohio, Indiana and West Virginia, according to New York’s court filing.

The emissions come from coal-fired power plants, steel mills, cement factories, natural gas pipeline engines and other sources.

Without federal intervention, upwind states will engage in a “deregulatory race to the bottom to attract industry away from other states – at the expense of public health and welfare,” they wrote.

Ohio and the other states challenging the federal plan say it’s already “a disaster” because it has been put on hold in so many places.

Unless it’s paused everywhere, the states argue, they will have to spend too much time and money on compliance measures – including reporting requirements and issuing or updating permits – while waiting to see if the courts uphold the plan.

The tighter pollution limits also could leave states without sufficient power sources if power plants shut down because it’s too expensive to comply, according to the states.

“If the federal plan is unlawful, the state applicants should be relieved from the harms the plan is imposing now,” lawyers for Ohio, Indiana and West Virginia wrote in a filing.

The EPA told the court that many of the requirements don’t kick in until 2026. Near-term costs are not high and won’t jeopardize power supplies, according to the agency.  

By contrast, the government’s lawyers said, halting enforcement while the rule is being challenged could result in years of delay for significant emissions reductions.

And even though the plan is already on hold in some states, it can still be effective in the others, they said.

Most of the expected reduction in nitrogen oxide emissions from iron and steel mills, for example, would come from Indiana and Ohio.

“It would be great if we controlled all of the pollution sources, but it is absolutely good to control some of them,” Earthjustice's Sankar said. “Controlling pollution sources is always a good thing.”

One year later:President Joe Biden drinks the water in East Palestine a year after train derailment