Republican AGs, industry ask for emergency Supreme Court stay of Biden smog rule

A coalition of Republican attorneys general on Wednesday asked the Supreme Court to stay the federal “Good Neighbor” interstate smog rule while they appeal a lower court ruling.

The plaintiffs, led by Dave Yost of Ohio, asked the high court to pause the rule, which regulates the flow of air pollution across state lines from 24 upwind states, during their appeal of an unfavorable opinion by the U.S. Court of Appeals for the District of Columbia Circuit.

“The Court should stay application of this federal plan while many parties — including Ohio, Indiana and West Virginia — challenge this plan in the D.C. Circuit. The challengers are likely to succeed on their claims under the Administrative Procedure Act,” the plaintiffs wrote.

“The federal plan is already a failed experiment. It applies to less than half of the States, and under a quarter of the emissions, that it set out to regulate. In reality, the federal plan was always doomed; the [Environmental Protection Agency’s (EPA)] carefully timed gambit to work around the Clean Air Act’s structure of cooperative federalism was never going to work,” they added. “With any reasoned consideration, the EPA would have known as much. Indeed, every circuit to have considered a state-plan disapproval — seven in total — has stayed the EPA’s action. And some did so before the federal plan was even finalized.”

In addition to Yost and the attorneys general of Indiana, West Virginia and Utah, the appeal was joined by several utility and industry groups, including the American Forest and Paper Association, the Interstate Natural Gas Association of America and the American Petroleum Institute, the Ohio Valley Electric Corporation and the National Mining Association.

In September, a three-judge panel of the D.C. Circuit refused to stay the Good Neighbor Rule, writing that the plaintiffs “have not satisfied the stringent requirements for a stay pending court review.” The court also dismissed a utility-backed lawsuit against the rule in March, but the 8th Circuit Court of Appeals granted Missouri’s request for a stay two months later.