Supreme Court Shadow Docket Decision Pauses Good Neighbor Rule, Putting Communities at Risk

Washington, D.C. – A divided 5-to-4 Supreme Court today granted pre-judgment stay applications to block a critically important Environmental Protection Agency rule aimed at reducing interstate smog pollution and improving public health. This decision means tens of millions of people will be exposed to higher levels of dangerous air pollution this summer, causing asthma attacks, lung damage, and premature deaths.

The stay applications, filed by Ohio, Indiana, and West Virginia and a group of industrial polluters will block the Good Neighbor rule while challenges to it are litigated on the merits in the United States Court of Appeals for the D.C. Circuit. These emergency requests were filed on the Supreme Court’s “shadow docket” before full consideration of the merits through full briefing before the D.C. Circuit. The Supreme Court held oral argument over the emergency requests in late February.

The EPA’s Good Neighbor Plan requires coal-burning power plants and other high-polluting industrial sources to decrease emissions that contribute to smog, thereby protecting residents in dozens of states who are unwillingly subjected to harmful air pollution from industrial sources of pollution often hundreds of miles away. Today’s decision means that polluters are no longer required to comply with the rule’s requirements, and facilities that began reducing their emissions last year can increase them again. 

"Today’s decision is deeply disappointing. It will result almost immediately in pollution that endangers the health of millions of people. The Court’s action is also very troubling because of the process by which the Supreme Court reached it:  It intervened based on the minimal process of its emergency or ‘shadow’ docket even after the lower court had carefully considered and rejected the case for a stay – and even though the applicants never identified any legal issue warranting ultimate Supreme Court review on the merits,” said the coalition of health and environmental groups defending the rule. 

“Courts have repeatedly upheld the EPA’s prior ozone transport rules as sound and effective strategies to reduce smog pollution. Congress has expressly required EPA to protect the public from interstate air pollution and to do so in a timely way. We will continue to support EPA’s efforts to implement these vital statutory protections that provide cleaner air and healthier lives for millions of people."

Indiana, Ohio, West Virginia, and power sector and industry groups sought an emergency stay of the Good Neighbor Plan, requiring upwind states to reduce their contributions to hazardous smog levels in downwind states. 

Smog, a harmful form of air pollution formed by emissions from power plants, factories and vehicles, leads to asthma attacks, heart and lung diseases, and premature deaths. The fully implemented Good Neighbor Plan is projected to prevent over a million annual asthma attacks and avert a thousand premature deaths, while also benefiting forests and waterways harmed by ozone and its precursor pollutants. 

A coalition of environmental and health groups has been defending the Good Neighbor Rule as intervenors in the D.C. Circuit litigation and filed oppositions to the Supreme Court applications seeking to block these safeguards. The coalition includes: Environmental Defense Fund; Citizens for Pennsylvania’s Future, Clean Air Council, and Clean Wisconsin represented by Clean Air Task Force; and Air Alliance Houston, Appalachian Mountain Club, Center for Biological Diversity, Chesapeake Bay Foundation, Downwinders at Risk, Earthjustice, Louisiana Environmental Action Network, Sierra Club, Southern Utah Wilderness Alliance, and Utah Physicians for a Healthy Environment, represented by attorneys at Earthjustice.