Supreme Court seems willing to block EPA 'good neighbor' air pollution rule

WASHINGTON — Conservative members of the Supreme Court on Wednesday seemed to be leaning toward blocking a Biden administration policy aimed at reducing air pollution that crosses from one state to another and creates harmful smog.

The court heard arguments in four related cases involving challenges to the policy brought by three Republican-led states — Indiana, Ohio and West Virginia — and various affected industries, including natural gas pipeline operators.

The Supreme Court, which has a 6-3 conservative majority, is skeptical of broad exertions of federal power on regulatory issues, including the environment.

Based on the oral arguments, it appears there is a majority to block the regulation in question while litigation continues in lower courts.

Several justices suggested the Environmental Protection Agency had failed to adequately explain why court rulings in separate cases that have blocked application of the rule against 12 of the 23 states it covers does not undermine its overall validity.

"It's just not explained," conservative Justice Brett Kavanaugh said. The agency "pretended nothing happened," he added.

The court's three liberal justices appeared united in believing it would be wrong for the court to intervene in the litigation when no lower court has yet ruled.

Justice Ketanji Brown Jackson said it would be "fairly extraordinary" for the court to step in.

Justice Elena Kagan said the challenges were "kicking up a lot of dust" but that it remained unclear whether they had met the requirements for the court to block the rule.

The “good neighbor plan,” introduced by the EPA last year, seeks to curb nitrogen oxide pollution from industrial facilities. If implemented in full, it would apply to 23 “upwind”