The Supreme Court on Wednesday appeared likely to block a Biden administration policy that aims to reduce air pollution that strays from one state to another.
The nine justices are tasked with deciding whether to block the Environmental Protection Agency‘s regulatory “good neighbor” plan, which places strict emission limits on power plants and other industries in “upwind states.” Ohio, Indiana, and West Virginia filed an emergency request with the high court in October 2023, saying the EPA overstepped its authority by imposing those requirements.
The question posed by some of the high court’s Republican-appointed justices focused on whether the EPA rule should be enforceable against the challengers because it no longer regulates 23 upwind states, as it was initially intended to do. It only affects 11 states because lower court actions paused it in 12 others.
“The problem is we’re not sure if the requirements would be the same with 11 states as with 23, and it’s just not explained,” said Justice Brett Kavanaugh, an appointee of former President Donald Trump.
Malcolm Stewart, a Justice Department attorney defending the Biden administration rule, was also questioned by Chief Justice John Roberts on the same topic.
“In terms of why it’s necessary to look at this here … it’s because EPA will not look at it until after the hundreds of millions of dollars of costs are incurred,” Roberts told Stewart in questioning how the regulation can be viable if it cannot be applied to all 23 states.
The justices must decide whether to impose a temporary block on the EPA effort while the underlying dispute continues in lower courts. Because the case stems from the Supreme Court’s emergency docket, a decision could come from this case sooner than later.
The 6-3 Republican-appointed majority on the Supreme Court has appeared skeptical in recent years of extensive federal power on regulatory matters, including those related to the climate and environment. Those sentiments were on display Wednesday during the oral arguments, hinting that the majority could decide against the so-called good neighbor plan.
In 2022, the Supreme Court issued a sweeping decision that limited the EPA’s ability to regulate carbon emissions from power plants. Last year, the court weakened the Clean Water Act by limiting the agency’s ability to regulate wetlands.
Meanwhile, the three Democratic-appointed justices grilled lawyers representing Republican-led states and industry groups, asking them whether they should be granted a request to halt the plan given that lower courts have not even finished deciding the case.
Justice Ketanji Brown Jackson, an appointee of President Joe Biden, said it would be a “fairly extraordinary” step for the Supreme Court to make.
Meanwhile, Stewart argued that blocking the rule for the challengers would result in harm to “downwind states that suffer from their upwind neighbors’ emissions” and expose their residents to health risks.
Challengers to the EPA plan say that it will result in lost energy production at a time when the nation’s power grid “is already stressed as it is,” West Virginia Attorney General Patrick Morrisey said in a statement.
“The EPA will keep trying to legislate and bypass Congress’s authority — and it has been settled by the Supreme Court: the EPA must regulate within the express boundaries of the statute that Congress passed,” Morrisey added.
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The oral argument comes after the EPA proposed a rule to enforce a similar plan in five additional states including Arizona, Iowa, Kansas, New Mexico, and Tennessee last month.
The U.S. Court of Appeals for the District of Columbia Circuit declined to block the plan that was in question at the high court on Wednesday as the legal proceedings continue. The Supreme Court’s agreement to hear arguments over this dispute marks the third time since 1971 that it has heard arguments on an emergency request, underscoring the rarity of the case.