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Supreme Court hears arguments in important case about ozone pollution rule


We're going to start this hour with news from the Supreme Court. Today, the justices heard arguments in a big environmental case. Lawyers for businesses and a group of red states are trying to block a federal rule designed to limit ozone pollution. The Biden administration and a group of other states say that those limits help save lives. NPR's Carrie Johnson is back from the Supreme Court, where she was listening in, and joins us now to explain this case. Hey, Carrie.


CHANG: So tell us more about this federal rule. Like, what does it specifically do?

JOHNSON: It's called the good neighbor rule, and that's because it's designed to protect the health of people in states where pollution flows downwind, across state lines. That can be hundreds of miles away from the pipelines or smokestacks that are emitting those chemicals. The Environmental Protection Agency issued the rule last year, but it's being challenged by Ohio, Indiana and West Virginia, along with companies and trade groups. They have a lot of complaints. Mostly, they say the rule was supposed to cover 23 states, but right now it covers only about half of them because of different lawsuits around the country.

CHANG: Wow. OK, so how did the Biden administration defend this so-called good neighbor plan?

JOHNSON: It's not just the Biden administration and the solicitor general's office. This is really a dispute among states - states with high levels of pollution and states where some of the chemicals float and where people are breathing smog. Here's Judith Vale, who argued for New York and those downwind states. She said, for all the complaints, this rule is in force in a lot of places and that it's working.


JUDITH VALE: And the rule right now continues to provide substantial and meaningful benefits to the downwind sources, and that's because upwind pollution is not evenly distributed as it goes downwind. So the downwind states that generally get a lot of pollution from the 11 states in the rule now still stand to get a lot of benefits.

JOHNSON: Vale says it's not just about health benefits for people in places like New York or Connecticut or Wisconsin. By limiting pollution from these red states, it's easier for the other states to meet their own air quality standards.

CHANG: Right. OK, so I also understand that this case comes from what's called the emergency docket, which is something we've talked a lot about in the past few years. How did that part of the proceedings come into play at the arguments this morning?

JOHNSON: It took - yeah, it took up a huge part of the arguments, Ailsa. This really is only the third time in about 50 years that the justices heard arguments in a case at this early a stage.


JOHNSON: The lower appeals court has not ruled on the substance of this dispute. Ohio and the businesses raced to the Supreme Court by arguing they were suffering irreparable harm. Basically, they talk about the cost of permitting and complying with the good neighbor rule. Several of the liberal justices raised questions about that today, though. Here's Justice Ketanji Brown Jackson.


KETANJI BROWN JACKSON: And what I'm a little concerned about is that, really, your argument is just boiling down to we think we have a meritorious claim, and we don't want to have to follow the law while we're challenging it. And I don't understand why every single person who is challenging a rule doesn't have that same set of circumstances.

JOHNSON: Another justice, Elena Kagan, said the burden is really on the red states to prove they need to pause the rule now, and that's a lot of hoops to jump through, she said.

CHANG: OK, and I understand that this case is still at an early stage, but did you get any hint from the justices whether they think this EPA rule is reasonable?

JOHNSON: It wasn't clear from the questions today where all of the justices stood. But Justice Brett Kavanaugh shared a lot about his thinking. He said he thought both the upwind and downwind states were suffering harm. Both sides in the case made arguments about the public interest. Over the past two years, the EPA has lost a lot at the Supreme Court in high-stakes litigation, and the justices have been skeptical in recent history.

CHANG: That is NPR's Carrie Johnson. Thank you so much, Carrie.

JOHNSON: My pleasure. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Carrie Johnson
Carrie Johnson is NPR's National Justice Correspondent.