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With Good Neighbor Rule ruling, it’s the Supreme Court’s world now. We’re just trying to breathe in it.

July 1, 2024

The Supreme Court’s apparent campaign to reach into more and more aspects of American life continued last week with its ruling on the Good Neighbor rule. Clean air and public health are the latest targets.   

In a divided 5-4 vote, the court granted several applications for emergency stays, temporarily blocking the Environmental Protection Agency’s (EPA) Good Neighbor Rule. That rule limited nitrogen oxide emissions – a precursor to ozone smog – from power plants and other highly-polluting industrial sources in 23 states to protect communities in downwind states from dangerous levels of smog. The Good Neighbor Rule has been in effect since last August, but it has now been put on hold until the litigation is completed.  

The Court’s decision is devastating for public health and has several other troubling implications for this case and beyond. 

Here are four key takeaways from the ruling: 

1. The Supreme Court is disregarding public health. 

The most immediate consequence of this decision is the loss of significant public health benefits. In applying the test for an emergency stay, the Court completely disregarded the public health benefits of the Good Neighbor Rule. EPA estimates that, in 2026 alone, the rule would have: 

  • Prevented approximately 1,300 premature deaths; 
  • Avoided more than 2,300 hospital and emergency room visits; 
  • Cut asthma symptoms by 1.3 million cases; 
  • Avoided 430,000 school absence days; and 
  • Avoided 25,000 lost workdays. 

The average value of only the monetized benefits between 2023 and 2042 is $13 billion per year. Moreover, these estimates undercount the actual benefits of the rule, as many are hard to quantify. In addition, with climate change extending the ozone season – the time of year when hot and sunny weather accelerates the chemical reactions leading to ozone formation – the importance of the rule’s limits will only grow. Troublingly, the Court offers only one sentence about the benefits of the rule, and that only refers to benefits for “downwind States,” completely disregarding the real people harmed by ozone pollution. 

Make no mistake, people who live in downwind states will be harmed during the time the rule remains on hold during litigation. Moreover, the lost public health benefits – including death from an asthma attack during this year’s ozone season, for example – can never be recovered.  

2. Emergency stays, once extraordinary, are becoming ordinary. 

Because courts typically presume that government agencies act lawfully, the ordinary course of events is that a regulation remains in effect while it is being challenged in court. As a result, the Supreme Court has repeatedly characterized an emergency stay as a remedy reserved for “extraordinary” cases. It therefore requires, as Justice Barrett puts in her dissent in this case, that “applicants must, at a minimum, show that they are likely to succeed on the merits, that they will be irreparably injured absent a stay, and that the balance of equities favors them.” Importantly, the burden here is on industry interests and the states who host them to satisfy these factors. 

The Court acknowledges all parts of the test described by Justice Barrett, but in effect nullifies all but the first part (the merits). Because, they say, “each side has strong arguments about the harms they face and the equities involved,” the Court’s decision “turns on the merits and the question who is likely to prevail at the end of this litigation.” 

But any time an EPA regulation is challenged, there will inevitably be arguments about compliance costs on one side and public health benefits on the other. The Court reduces the emergency stay test to a preliminary and rushed assessment of the merits, which, as discussed below, the Court is particularly ill-suited to undertake in this posture. And, by removing the challengers’ responsibility to carry the burden on the remaining parts of the test, the Court makes it significantly easier for them to prevail on a stay motion. In effect, it replaces the scales of justice with a 🤷. 

To take a step back and put this case into context: What’s the emergency? The Court mentions compliance costs and states’ interests in retaining regulatory authority. Yet those considerations arise with every EPA regulation. The Court never suggests that there is anything unusually imminent or compelling about them in this case. 

And then there is the Court’s unusually slow response to the stay applications. Ordinarily, courts will rule on a motion for an emergency stay within days or weeks. Here, the Good Neighbor Rule has been in effect since August 2023. The first emergency stay application was filed with the Court on October 13, 2023. Yet the Court did not hold argument until February of this year and then waited four months after that argument before issuing its decision. 

The Court’s lack of urgency hardly suggests that it saw itself as responding to an emergency. In addition, its decision to hear argument on the stay applications delayed merits briefing in the D.C. Circuit and therefore of a final decision on the merits. In fact, the time it took the Court to grant the stay applications is longer than the typical period needed to fully brief a case in the courts of appeals.  

In the end, the Supreme Court did not act with urgency on this case, but it did act without the benefit of a full briefing, which could have occurred in another court in a shorter amount of time. 

3. The Supreme Court appears to be declaring its intention to become a court of first view, rather than review. 

The Supreme Court has always claimed that it is “a court of review, not first view.” But, as Professor Stephen Vladeck argues in a forthcoming article, the Supreme Court no longer sees itself this way. The Good Neighbor decision is perhaps the most egregious example of this pernicious trend. 

The Supreme Court isn’t supposed to be the first court to weigh in on the facts or the law of a case; it is meant to do so only after lower courts have a chance to consider the merits. There are good reasons for this approach. It allows the issues “percolate” in the lower courts, so that the Supreme Court can only address a case upon a well-developed record and after the most important legal and factual issues have been clarified through full briefing.  

Regulating air pollution is a highly technical area of policy. In this rule, EPA properly based its decisions on a voluminous scientific and technical record. The job of the courts is to review that record and determine if EPA acted reasonably. That judicial review process usually involves a deep consideration of the merits of what EPA did, with full a briefing both against and in support of those rules. 

The Supreme Court did not let that process play out here and, as a result, reached a flawed decision. As Justice Barrett writes in dissent, the Court blocked a major EPA rule “based on an underdeveloped theory that is unlikely to succeed on the merits.” In doing so, it granted “emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.” 

A perhaps trivial, but nevertheless telling, an example of the consequences of this rush to review is that the Court repeatedly refers to the pollutant regulated by EPA in this case as “nitrous oxide” (also known as laughing gas, commonly deployed as a painkiller by doctors and dentists) when the pollutants at issue are nitrogen oxides (note:  the Court has since released a corrected opinion to address these errors). Suffice it to say that there is a good reason that EPA, and not Justice Gorsuch or his dentist, is the expert in regulating air pollution. 

4. The Supreme Court is endeavoring to become a “Super-EPA.” 

The Court says that what it is doing is “nothing new” when the Supreme Court reaching past lower courts to stay major environmental rules is a new and dangerous phenomenon. 

The practice only began when the Court blocked the Clean Power Plan in 2016. Now, the habit of leapfrogging thoughtful consideration of environmental rules by lower courts—with a full briefing and the full technical record—is becoming unfortunately common. Instead of allowing agencies with relevant technical expertise to address the public health and environmental effects of air pollution, the Supreme Court is taking that power into its own hands. Last week’s power grab harms communities and opens the door to the Supreme Court wreaking even more havoc in the future.  

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