Supreme Court Blocks Life-Saving Good Neighbor Rule in Shadow Docket Decision

“Today, after hearing challenges on its shadow docket – without full briefing and before the D.C. Circuit could consider any of the litigation on its merits – the Supreme Court recklessly issued an emergency stay to block vital clean air protections that were in effect and protecting the lives and health of millions of people. The Court’s extraordinary decision today to grant an emergency stay is a travesty of justice that puts the lives and health of millions of people at risk.

“The Supreme Court agreed to block EPA’s Good Neighbor Plan, which protects people in downwind states from smog-forming pollution that blows across state lines from upwind coal-fired power plants and other large industrial sources – pollution that is linked to serious heart and lung diseases and premature deaths. The Good Neighbor Plan was already operating in eleven states and was expected to save one thousand lives each year when it was fully implemented. 

“The Good Neighbor Plan has a rock-solid legal foundation in the Clean Air Act’s Good Neighbor provision and in long-standing precedent. More than a century ago Justice Oliver Wendell Holmes recognized that downwind states had a legal right not to suffer pollution from their upwind neighbors, and the Supreme Court itself affirmed EPA’s authority to protect downwind states as recently as 2014 in the EME Homer City Generation case. And in her dissent today Justice Barrett said the court ‘enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits.’

“Upwind polluters have rudimentary and commonsense options to comply with the law. Modern pollution controls are readily available and have already been widely deployed. In spite of that, and in spite of the Good Neighbor Rule’s strong legal history, upwind polluters bypassed our nation’s well-established legal processes and asked the Supreme Court for an emergency stay to block the rule. This summer’s ozone season will be more severe and more dangerous because of the Court’s decision today. 

“Environmental Defense Fund will vigorously defend EPA’s Good Neighbor Protections to ensure the millions of people afflicted by upwind smog pollution can breathe easier.”

            - Vickie Patton, General Counsel, Environmental Defense Fund

 As Justice Barrett’s dissent explains, the serious pollution harms imposed on millions of people counsel restraint: “[T]he Court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years — even though the temporarily stayed SIP disapprovals may all be upheld and the FIP may yet cover all the original States. The Court justifies this decision based on an alleged procedural error that likely had no impact on the plan. So its theory would require EPA only to confirm what we already know: EPA would have promulgated the same plan even if fewer States were covered. Rather than require this years-long exercise in futility, the equities counsel restraint.”

Environmental Defense Fund was a party in the case and served as counsel of record for environmental groups.