A recent Supreme Court ruling could impact air quality in Pennsylvania.
The Environmental Protection Agency's 2023 “Good Neighbor Plan” addresses cross-state air pollution from power plants and other facilities. The agency had required 23 states to reduce nitrogen oxide emissions that contribute to smog.
Ohio, Virginia, and Indiana, along with industry groups, challenged the rule. While that case is being heard in federal court, the challengers asked the Supreme Court to block the rule from taking effect, and in a 5-to-4 decision in Ohio v. EPA last month, it did.
The Clean Air Council (CAC), among others, filed documents supporting EPA’s rule at the Supreme Court. The Allegheny Front’s Kara Holsopple spoke with CAC Executive Director Alex Bomstein about the court’s decision.
Kara Holsopple: What is the problem that the Good Neighbor Plan was created to solve?
Alex Bomstein: Air pollution does not respect political boundaries. That is the problem. And in the US, we have states that pollute, and that pollution travels across the border over to other states. And the people in those other states breathe in that air pollution, and they get sick and some of them die. It’s a big problem. This is an issue that only the federal government is well-equipped to address because the federal government is designed to tackle problems that go across multiple states precisely like this.
Kara Holsopple: Your organization, among others, filed documents supporting EPA’s rule at the Supreme Court. What was your argument, and why was it important to you that it be allowed to go into effect?
I’ll start with the latter half of the question. It’s absolutely vital that people across the United States get protection from this rule now. What we’re dealing with, and in this hot summer it’s particularly pertinent, is nitrogen oxide emissions that generate smog and air pollution on a ground level that are causing health problems of people. And the decision in Ohio v. EPA prevents that from going into effect now, but we need it now. This is urgent. Now people are getting sick. People are getting asthma attacks now from the air pollution from upwind states.
EPA absolutely has this authority to impose upon the states very basic rules requiring them to cut their air pollution that’s harming people downwind, and this is what we said[in court filings]. And the benefits of this rule are enormous, enormous health benefits. And the drawbacks of this rule are essentially nothing. It is that some industries have to put in place some pollution controls that they don’t otherwise want to put into place.
Ohio, for example, is an excellent talking point for us Pennsylvanians because Ohio is upwind of Pennsylvania. And when you have polluting facilities on the border of Ohio or even farther from the border, which pollute, and people in Pittsburgh and other areas along the Pennsylvania-Ohio border breathe in that pollution – what is Pennsylvania to do? We have to rely on the federal government to protect us. Pennsylvania can handle its own pollution, but Pennsylvania needs the EPA to handle cross-state air pollution.
As you said, the court ruled 5-to-4 to temporarily block the Good Neighbor Plan from taking effect while the case plays out in federal court. Writing for the majority, Justice Gorsuch wrote that if the plan moved forward, it could cost the states challenging it hundreds of millions, if not billions of dollars. What would you say to that?
The benefits are several orders of magnitude larger than the costs, first of all. Second of all, that air pollution is illegal. The EPA is saying the Clean Air Act requires control of this type of air pollution. It is not an optional thing. This is the law. This is designed to reduce air pollution and increase health benefits for all of us.
Is this the outcome you expected at the Supreme Court?
I don’t like to predict Supreme Court decisions. You’ll note that this is a 5-4 decision. It was not a 6-3 decision. The case was in a very unusual procedural posture being fast-tracked by the US Supreme Court. That’s not how these cases normally go. The normal procedure would be for the lower courts to continue to handle this case, and for the Supreme Court to not weigh in. I can’t speak to why they decided to weigh in. What I can speak to is that this decision is a catastrophe for public health, and that is the result of the choice that the Supreme Court made in taking this case and deciding this way.
What could this decision mean for the enforcement of future EPA rules?
Every time the Supreme Court takes another bite out of EPA’s authority, it makes it harder for EPA to do its job protecting our public health. This particular decision, I would say, has a smaller impact than the elimination of Chevron deference, which we saw the same week. Nonetheless, it is again an unhelpful wrong direction for the Supreme Court to move and weaken EPA in entirely needless ways.
Chevron deference gives authority to administrative agencies that have experts that can make decisions about laws. But the Supreme Court said that that actually should be in the court’s purview.
Precisely.
What could this decision [Chevron] mean for Pennsylvania?
Very straightforwardly, it means that we’re going to breathe dirtier air and we’re going to have higher healthcare costs. We’re going to have more days out of work because we’re sick. We’re going to have economic repercussions because of that lost work time, because of the time people need to take to care for their ill relatives. This is an economic problem. This is a public health problem. This is a problem for EPA’s ability to justly and fairly administer the Clean Air Act.
What happens now? What will your organization do now?
I can’t really speak to future steps in the litigation because that is not done with. What I can say is that Clean Air Council will always continue fighting hard to protect our air, to protect our public health, to protect the environment.
The EPA, first of all, isn’t the only way we’re protecting our air quality. In Allegheny County, for example, we regularly engage with the Allegheny County Health Department to try to make sure that the permitting in Allegheny County is as strong as it should be. We work at the state level with the Pennsylvania Department of Environmental Protection to do the same, to make sure that the air monitoring networks are protective, to make sure that environmental policy, as it relates to air quality, is as good as it can be.
A lot of the decision-makers that are closest to what matters most for our air quality are local and statewide. So this is certainly very unfortunate at the federal level. But it’s not the only thing going on when it comes to air quality. And there are a lot of other ways to move ahead.
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