Six More Weeks of...Smog? The Court’s Shadow Docket Takes on a Case About Ozone

A court building casting a shadow behind a veil of smog

In a few weeks, the Supreme Court will consider a case about the Environmental Protection Agency’s (EPA) recent rule regarding air pollution that crosses state borders (see the Supreme Court’s docket here). EPA finalized this rule after downwind states sued for relief from harmful upwind ozone. Some of the upwind states are asking the Court to pause the rule now. Rather than issue that pause immediately, the Court is going to hear arguments on what is known as its “shadow docket” (read an article by Nina Totenberg about why it is called a “shadow docket.”) Hearing the case in this way is significant, and it may or may not mean that the rule is at risk of being overturned in the Court. Let’s review.

As required by the Clean Air Act, EPA recently updated its national standard for ozone. As a result, states had to submit plans to EPA showing how they would cut ozone-forming pollutants, like nitrogen oxides, and control the emissions that flow downwind, harming other states.

If EPA finds that a state’s plan isn’t going to meet the standard, EPA can issue a federal plan that will regulate the sources in that state directly. In this case, EPA found that 21 states had submitted inadequate plans, while two other states failed to submit plans at all. EPA issued federal plans in March 2023. The federal plans have some novel features. For example, the restrictions apply to natural gas pipelines, cement kilns, and other non-power plant sources — for the first time.

Twelve of those states challenged EPA’s decision disapproving of their state plans, and courts have paused EPA’s decision in those states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia. That means that those states do not currently have to comply with the restrictions in the federal plans.

Petitioners before the Supreme Court — Ohio, West Virginia, Indiana, and industry groups — have argued that EPA’s federal plans are flawed because EPA must have known that the plans would not go into effect in all 23 states, frustrating EPA’s coordinated approach. (Ignoring the question of how EPA should have known that the plans would be paused in 12 states after it issued the plans.) Petitioners’ suggested remedy is to stay the effect of the federal plans in the rest of the states California, Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin.

Interestingly, many of the states on that list support EPA’s decision and have opposed the stay, including New York, Illinois, Maryland, New Jersey, Pennsylvania, and Wisconsin. Those states filed a brief arguing that EPA’s federal plan is necessary to address the severe consequences of ozone-forming pollutants. The Clean Air Act makes clear that it is the federal government’s job to set standards that protect downwind states from harmful emissions in other states.

Ten years ago, the Court upheld this principle in Environmental Protection Agency v. EME Homer City Generation — a case challenging an earlier cross-states air pollution rule. In that case, the Supreme Court reversed then-Judge Kavanaugh (when he was on the D.C. Circuit). The Court rejected the argument that EPA was required to take an extra step and give states guidance on their plans before finding that their plans were inadequate.

The arguments are somewhat different this time around and the Court’s makeup has changed. In 2014, Justices Ginsburg and Kennedy helped make up the 6-member majority upholding EPA’s decision. Now Justices Kavanaugh and Coney Barrett have replaced Justices Kennedy and Ginsburg, respectively.

The impact of the new Court and its decision to hear oral argument on the shadow docket are both interesting features to watch in this case. Tune in on February 21 for live audio at the Court, including arguments from the New York Office of the Attorney General that downwind states deserve to see the federal government do its job under the Clean Air Act.