A group of GOP-led states and industry groups on Wednesday asked the Supreme Court to prevent the EPA from enforcing a Biden administration emissions and clean air rule.
Ohio, Indiana and West Virginia filed a lawsuit to challenge the so-called Good Neighbor Rule, and last month a federal appeals court in Washington declined to stop the program as that case moves through the legal process.
The states filed an emergency application that asks the justices to overrule that appeals court decision and halt enforcement, as did two industry groups in separate applications also filed Wednesday.
Among other reasons, the states contend that leaving the rule in place harms them because of “the time, money, and other resources spent on complying with an unlawful federal mandate.”
The rule, announced in March, requires 23 states to reduce emissions in power generation and other industries to help reduce smog and other air pollution in neighboring states. The plan covers much of the country, including California and several Western states and a large swath of the country from Texas to New York.
The states argued in the application that the rule violates federal administrative law and the Clean Air Act, which requires states to have primary responsibility for assuring air quality. They argued the EPA’s plan is so egregious that litigation has meant it currently applies to only 11 of the 23 states it was originally meant to cover, as an indication they are likely to win their challenge as well.
Ohio pointed out that the EPA has already issued temporary rules that pause the federal plan in 12 of the planned 23 states as a result of litigation.
“But rather than admitting failure and returning to the drawing board, the EPA has doubled down on its ‘dictatorial’ quest for top-down control on reducing air pollution,” Ohio and the other states said in the application.
The rule established caps for power plants and other emissions sources, which could then be traded among each other. The rule came after the EPA rejected the plans offered by those states to regulate emissions on their own, and those decisions have themselves been challenged in court.
Ohio and the other states have argued the plan violated the Clean Air Act by not giving states time to alter their rejected plans before forcing the adoption of a federal plan, and by regulating emissions of non-power plants for the first time.
The other Supreme Court applications were filed by forestry, mining, paper and cement industry groups as well as several power companies.
An application from the power companies said the rule would require nearly $1 billion in compliance costs and “threatens disruption to a reliable supply of natural gas for customers throughout the country, including for heating and cooking in homes and businesses, as a fuel for electric power generation, and as a critical input in industrial processes.”
And an application from the forestry association and other groups criticized the EPA’s “stubborn refusal” to abandon a plan that may cost industries more than $8 billion in compliance costs and could force producers out of the market entirely.
The forestry association application noted that every appellate court to consider the state-level disapprovals that preceded the federal plan has stayed them while litigation played out.
The justices don’t have to act on the application, and the Biden administration will likely respond.
The rule has faced criticism on Capitol Hill as well as from Republicans and Sen. Joe Manchin III, D-W.Va., who have said it could raise energy prices or force power plants to close.
Before the rule was finalized, Manchin wrote EPA Administrator Michael S. Regan asking him to hold off on the plan. Republicans such as Sen. Cynthia Lummis, R-Wyo., have questioned whether the caps proposed by the rule exceed the agency’s authority.
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