U.S. Supreme Court pauses federal smog control plan that Texas opposed

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The U.S. Supreme Court on Thursday paused a U.S. Environmental Protection Agency plan to reduce the amount of smog that drifts across state borders from industrial facilities like power plants.

The 5-4 opinion is the latest in a conflict over the federal agency’s “good neighbor” rule, announced in March 2023, which requires Texas and 22 other states to cut emissions from power plants and other industrial sources that contribute to ozone pollution in neighboring states.

Ohio, Indiana and West Virginia, along with the steel industry and other groups, challenged the federal rule in a 2023 lawsuit calling it costly and ineffective. The court ruled Thursday that the federal government did not give an explanation for how the plan would work with fewer participating states, since the rule is on hold in Texas and 11 other states.

Ground-level ozone, a component of smog, can irritate and inflame the lungs. It can make it difficult for some people to breathe, triggering respiratory problems like asthma attacks or aggravating chronic bronchitis, according to the EPA.

Under the Clean Air Act, the EPA sets air quality standards, which requires states to submit plans detailing how they will comply with federal air rules called the State Implementation Plan.

One of those requirements is the good neighbor rule, which addresses the fact that air pollution can drift over wide areas and cross state lines — which means pollution migrating from so-called “upwind states” like Texas, with its massive petrochemical industry, could push neighboring states out of compliance with federal air standards.

If the EPA decides that an upwind state’s plan to control such pollution isn’t adequate, the agency will write its own plan for that state.

In 2022, Texas, along with 20 other states, turned in plans that the EPA rejected as inadequate. Texas sued the EPA over that ruling in February. An email from the Texas attorney general’s office at the time said that “the rule that would undercut states’ authority and efforts to properly regulate their own environment.”

The following month, the EPA revised its smog plan, which aims to provide a national solution to the ozone pollution problem. The federal agency said that the “good neighbor” plan will prevent approximately 1,300 premature deaths nationally and reduce hospital and emergency room visits for thousands of people with asthma and other respiratory problems by 2026.

But Texas sued again, challenging the revised plan.

While Texas is not actively involved in the Supreme Court case, Victor Flatt, an environmental law professor at Case Western Reserve University in Cleveland, Ohio, said the Supreme Court’s decision to pause the plan will influence legal challenges like Texas’ as they proceed in lower courts.

“The hope of some of the plaintiffs is that there will be a different administration in the future that will eventually repeal [the rule] or not let it go into effect,” he said.

But Flatt said that will not work, because the Clean Air Act requires states to meet specific air quality standards for six air pollutants, including ozone.

In Texas, ozone season runs from March to November. Hot, sunny days make smog worse because sunlight and high temperatures accelerate reactions between volatile organic compounds and nitrogen oxides to form ozone.

As average temperatures increase in Texas, driven by climate change, it has made those conditions even more common. Cities like Houston and Dallas have experienced an increase in ozone action days, which are days when ozone levels are unhealthy for children, pregnant women, older adults and people with preexisting respiratory conditions.

Environmental lawyers and advocates say the Supreme Court’s ruling means the industry will not be obligated to comply with the federal rule until the pause is lifted.

“[The court] is second guessing EPA policies and showing that this six-justice supermajority is really interested in being a deregulatory force in reducing the ability of regulatory agencies,” said Sambhav Sankar, a senior vice president for programs for the nonprofit Earthjustice.

Others are worried smog will contribute to more respiratory problems if no pollution reductions are in place.

“The pollution problem doesn’t disappear regardless of the stay,” said Megan Herzog, an attorney for Donahue, Goldberg & Herzog representing the nonprofit Environmental Defense Fund.

“With the pause, the upwind states are temporarily off the hook for their pollution traveling across state borders, but the downwinds are going to have to do more,” Herzog added. “And that means people are going to have more asthma and respiratory problems.”

Disclosure: Environmental Defense Fund has been a financial supporter of The Texas Tribune, a nonprofit, nonpartisan news organization that is funded in part by donations from members, foundations and corporate sponsors. Financial supporters play no role in the Tribune’s journalism. Find a complete list of them here.

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