Supreme Court to Hear Arguments On National Ozone Pollution Rule

The Environmental Protection Agency, states, and industry will meet for arguments next year over whether justices should pause a national traveling ozone rule while challenges continue in regional courts, according to a Wednesday order from the US Supreme Court.

Justices deferred a request from multiple states and energy giants for an emergency stay of the rule, which adds stringent new requirements to stem ozone pollution that wanders into downwind states. Now, parties will argue their stances before the Supreme Court in February 2024.

“Arguing counsel should be prepared to address, among other issues related to the challenge based on the SIP disapprovals, whether the emissions controls imposed by the Rule are reasonable regardless of the number of States subject to the Rule,” according to the order.

The U.S. Court of Appeals for the District of Columbia Circuit refused to issue a stay of the rule while litigation proceeds in regional circuits. The two-prong rulemaking relies on a rejection of state air plans that will then be replaced by a federal alternative.

Some states have managed to freeze the rejection component of EPA’s plan in certain circuit courts, arguing that their grid reliability and resources would take a hit if the first prong of the standards are implemented before courts decide if the rule should be scrapped entirely.

Challengers tried to halt the second prong of the rule at the DC Circuit, but judges there rejected the request, prompting petitioners to turn to the Supreme Court for an emergency stay.

The rule is one of the cornerstones of EPA’s air pollution reduction programs, aimed at stemming ozone pollution that wanders across state borders and proliferates during the summer months when nitrogen oxides bake under ever-hotter heat waves. The agency rejected 21 state air plans—including those of four Western states not previously included in Good Neighbor requirements—and added new industries to the compliance roster.

Critics blasted the rule in court, arguing that the agency promulgated a faulty and unfeasible rule, while also flying against years of cooperative federalism that allows states to issue their own air plans for approval before being evaluated or replaced.

The cases are Ohio v. EPA, U.S., No. 23A349, Decision and Kinder Morgan v. EPA, U.S., No. 23A350, Decision.