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U.S. Supreme Court blocks the EPA’s plan to combat interstate air pollution

ARI SHAPIRO, HOST:

The Environmental Protection Agency's Good Neighbor plan is designed to protect downwind states from air pollution blowing across state lines. It's a friendly enough name, but a group of states, companies and trade associations does not find the Good Neighbor plan friendly. So they sued, and in a 5-4 vote today, the Supreme Court sided with them and put the plan on hold while litigation continues in lower courts. To talk more about the decision, we're joined by Jonathan Adler. He's the founding director of the Coleman P. Burke Center for Environmental Law at Case Western Reserve University. Good to have you back.

JONATHAN ADLER: Good to be here.

SHAPIRO: What's your topline reading of this opinion?

ADLER: Well, the court is holding the EPA to a fairly stringent rule about responding to comments in the rule-making process. And I think this is one of several decisions we've seen over the last 10 years where the court is concerned that if companies have to begin complying with environmental regulations while judicial review is still going on, they may make investments that the EPA could not have properly required them to make. And we saw that happen with some prior rules, and I think that's in the background of this decision as well.

SHAPIRO: The plan was established to ensure that states complied with a 2015 air quality law, and the states that filed suit say the EPA failed to adequately consider the legal and practical implications of substituting its plan for the states' plans. Is this a familiar states rights argument that we've heard in many other contexts, or are they getting at something more specific to air pollution here?

ADLER: Well, the states' arguments that they made included some traditional appeals to states rights concerns. But the decision the court gave was very narrowly focused on the procedure the EPA goes through and, in particular, a requirement that's usually dealt with in lower courts that agencies adequately respond to all the significant comments made during the rule-making process.

And the majority was convinced that the EPA did not adequately respond to questions about what to do if the number of states that were supposed to participate in the Good Neighbor program was reduced because in various other cases, some of the states were at least temporarily removed from the program. And the complaining states said this arguably changes how much of an emission reduction effort different states or different companies have to make. EPA, you didn't adequately tell us how you were going to figure out how the program changes if some states drop out. And five of the justices found that convincing.

SHAPIRO: Given how conservative and forward-leaning this court has tended to be, does it strike you as a rather restrained ruling? I mean, they didn't give the EPA a win, but they didn't give them as much of a loss as they might have, right?

ADLER: Well, yes and no. I mean, the legal holding of the opinion is very narrow. But what was very aggressive about this case is that the court didn't wait for the challenges on these arguments in the lower courts to proceed. Rather, this case came to the court on an emergency motion for a stay to stop the rule in its tracks while litigation was ongoing. And that was quite an aggressive move even though the ultimate decision was narrow.

SHAPIRO: And just in our last 30 seconds, do you think this implies something larger about the issue of rule-making, which is before the court in a couple of cases?

ADLER: Well, I mean, I do think it shows that a majority of the court is skeptical of federal regulatory agencies and is concerned that, when cases finally get to the Supreme Court, it might be too late and that, in this case, it justified the court intervening early.

SHAPIRO: That's Jonathan Adler, law professor at Case Western Reserve University. Thank you.

ADLER: My pleasure. Thank you. Transcript provided by NPR, Copyright NPR.

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Ari Shapiro
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