Roundtable #23 | Ohio v. Environmental Protection Agency
Section I: Introduction to Ohio v. EPA
The Clean Air Act of 1970 gives the Environmental Protection Agency the power to set national air pollution guidelines known as National Ambient Air Quality Standards (NAAQS). In 2015, the EPA made the NAAQS for ozone stricter. However, due to the possibility of cross-state air pollution where upwind states could prevent downwind states from achieving the new NAAQS, the EPA proposed a transboundary Good Neighbor Plan. The provision calls for upwind states to reduce ozone-forming nitrogen oxide (NOx) emissions from industrial facilities to “result in cleaner air and better health for millions of people living in downwind communities.” The twenty-three upwind states were then required to submit individual State Implementation Plans (SIPs) to reduce their respective emissions. However, the EPA rejected twenty-one of these plans and subsequently decided to implement (or, as the states would see it, impose) its own Federal Implementation Plan to meet the NAAQS. The FIP triggered a legal challenge from three states and several trade associations, requesting a court to temporarily stay the EPA rule, arguing that the emission controls were “arbitrary or capricious.” Twelve of the original twenty-three upwind states have already been granted stays from lower courts.
On June 27, 2024, in Ohio v EPA, the Supreme Court of the United States granted emergency applications from Ohio et al., temporarily halting the FIP under the Good Neighbor Plan. This grant is pending judicial review from the D.C. Circuit. In a 5-4 decision, the Supreme Court ruled that the applicants were likely to succeed in arguing that the FIP was unreasonable under the Clean Air Act. Associate Justice Gorsuch expounded that the EPA did not explain why its emissions reduction requirements would remain appropriate if only eleven states were covered by the plan. Essentially, if fewer states were covered by the plan than originally intended, why not exempt all states?
The EPA did apply a severability provision saying the rule would continue to apply, but this did not address the underlying issue of whether the emissions requirements would still be justified with fewer states. The dissent argued that the Court’s theory about the EPA’s failure to explain was underdeveloped, plagued by significant procedural obstacles, and contradicted with evidence in the records. The EPA’s calculation of emissions limits appeared to be independent of the number of states covered. Furthermore, noting that a procedural error — specifically, the case being granted during the shadow docket — does not invalidate a decision such as the FIP, the dissent contended that the Clean Air Act’s harmless error rule would likely prevent the applicants from prevailing.
By Aliyyah Hamid
Edited by Yunah Kwon
Section II: Economic pragmatism versus public health in Ohio v. EPA: a dichotomy?
While the news has been vocal about Associate Justice Gorsuch mistaking laughing gas (nitrous oxide) as an environmental pollutant (nitrogen oxidants, NOx) in his penned opinion, the Ohio decision warrants discussion on the dichotomy in environmental law and policy: economic pragmatism versus the precautionary principle. This contradiction is evident in how economic considerations are weighed against environmental regulations. The ruling in Ohio v. EPA underscores the tension between economic consequences and efficiently implementing health policies. However, the dissent’s statement that the EPA’s FIP reconciled economic and environmental well-being highlights an important stepping stone in building the future of environmental laws.
The Precautionary Principle is a legal and epistemological approach in public health that presumes innovations and substances as harmful before enough studies are conducted on their consequences. There is much division over this principle, with some arguing that it is a bias that “errs on the side of caution” and is ultimately economically “paralyzing,” especially if the substance/activity brings both benefits and risks.
Economic pragmatism may be characterized as the stand against “paralysis” caused by the precautionary principle. This idea emphasizes that hastily enforcing health policy per the precautionary principle could negatively impact infrastructure and the economy. For example, previous National Environmental Policy Act (NEPA) rulings have doubled the amount of time to build industrial projects, and therefore, “the corpus of environmental law has created a legal phenomenon for…‘opportunity-cost takings.’”
In Ohio v. EPA, the petitioner, Ohio, argued that the massive scope of the EPA’s FIP — which followed the precautionary principle by attempting to prevent asthma-related deaths nationwide — would warrant a “disaster” in electric-grid emergencies. However, according to the respondents, the EPA, this was merely speculation. In Barrett’s dissent, she argued that the EPA’s procedures in estimating emissions and their effects were carried out on an individual state basis. In other words, the FIP would not lead to infrastructure and economic failures but rather do a great job balancing the precautionary principle with economic pragmatism.
To grant a stay, SCOTUS typically follows a four-factor test outlined by Nken v. Holder: “(1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies.” In this ruling, the Court mainly based its decision on the first factor with some regard to the second. In applying the Nken factors to grant a stay, the opinion seemed to pit industry injury against the EPA’s “statutory” obligation to protect public health, coupled with the claim that the EPA did not provide a “reasoned response to legitimate concerns posed during the comment period for a rule.” This reasoning convinced the majority of the Court to rule that the EPA’s FIP was overbearing on state governments.
The majority emphasized that the applicants would face a significant economic burden if forced to comply with the EPA’s FIP pending the outcome of the litigation. Moreover, Gorsuch concluded that the FIP lacked a reasonable explanation, focusing mainly on how the EPA failed to offer a reasonable defense for the efficiency of their plan with fewer states.
Meanwhile, the dissent opined that the FIP was not only reasonably explained under the Clean Air Act’s procedural bar but also economical, offering the view that pragmatism and public health are not opposites. Barrett, writing the dissenting opinion, asserted that the majority’s decision undid efforts towards curtailing harmful air pollution and further stated that the twenty-one states that failed to meet the EPA’s NAAQS “proposed to do nothing to reduce their ozone precursor emissions.” In addition to emphasizing how significant the FIP would be for public health, Barrett also recognized pragmatism in the EPA’s decision to implement FIP. Noting the EPA’s urgency to address the Good Neighbor requirements, Barrett maintained, “EPA had a statutory obligation to promulgate a FIP by the August 2024 NAAQS attainment deadline.” The dissent’s argument showed how the EPA sufficiently balanced economic pragmatism with the precautionary principle by enacting the FIP.
In sum, the clashing opinions presented in Ohio v. EPA illustrate the overarching endeavor of negotiating states’ financial burden with broader environmental and public health implications. The dissent’s argument highlights how the EPA tried to reconcile economic and environmental interests by focusing on cost-effective measures to improve air quality through the FIP. It is the balancing of these interests, the dissent points out, that requires subtlety in the EPA's environmental regulation.
By drawing upon the layers of complexity that Ohio v. EPA entails, we can further examine the presiding state of our current environmental legal system. The procedural focus of the case was on whether the rule adopted by the EPA was reasonably explained, but its broader implications accentuate the continuous balancing of economic costs against critical environmental problems. Unfortunately, the interests of the industrial economy are archetypically pitched against those of ecological health. Change will not occur overnight, but it most definitely will not occur unless we do away with the belief that only one can thrive.
By Aliyyah Hamid
Edited by Yunah Kwon
Section III: Ohio v. EPA and the Arbitrary and Capricious Standard: A Threat to the EPA’s Authority and Effective Environmental Law
The Clean Air Act (CAA), intended to regulate air pollution nationwide, requires states to establish State Implementation Plans (SIPs) which the Environmental Protection Agency (EPA) then reviews to evaluate compliance with the National Ambient Air Quality Standards. In February 2023, the EPA rejected twenty-one of the twenty-three SIPs submitted by states. The EPA then issued a Federal Implementation Plan (FIP), the Good Neighbor Plan, that was generalized to address the plans’ flaws and involved all twenty-three states. In June 2024, the U.S. Supreme Court granted a temporary stay that halted implementation of the FIP and determined that the FIP is likely “arbitrary” or “capricious” since the EPA failed to explain why it should apply to the remaining eleven states after lower courts exempted twelve. However, in the dissent, Associate Justice Amy Coney Barrett opposed this characterization of the EPA’s actions, revealing how various interpretations of the “arbitrary and capricious” standard have created an inconsistent pattern of precedent. Ohio v. EPA’s ruling has solidified another precedent; in the future, plaintiffs, especially states, could successfully challenge the EPA on the basis of this judicial standard of review. Consequently, the implications of the decision extend beyond temporarily hindering the ability of the EPA to enforce compliance through one FIP. Rather, the ruling represents a risk to the authority of the EPA and the implementation of environmental law in the future.
Presented in section 706(2)(A) of the Administrative Procedure Act (APA) in 1946, the arbitrary and capricious standard enables courts to review the actions of federal agencies. Specifically, it grants courts the ability to overturn agency policies which are arbitrary or capricious, constitute an “abuse of discretion,” or fail to comply with existing law.
However, given that there is no uniform definition of the arbitrary and capricious standard, various opposing understandings rooted in past cases have generated ambiguity which became evident in Ohio v. EPA. On one hand, in the majority opinion, Associate Justice Neil Gorsuch cites the 2021 case Federal Communications Commission v. Prometheus Radio Project (Prometheus Radio Project), using the notion that agency decisions are neither arbitrary nor capricious when they are “reasonable and reasonably explained.” By referencing Motor Vehicle Manufacturers Association of the United States, Inc. v. State Farm Mutual Automobile Insurance Company (State Farm) (1983), he also specifies that federal agencies must address all of the significant components of the issue. In this way, he placed the burden solely on the EPA to sufficiently explain why the FIP should cover the remaining states and produced an inflexible benchmark of reasonableness which the Supreme Court determined the FIP failed. Yet, on the other hand, in the dissent, Barrett employs a less rigid interpretation of the arbitrary and capricious standard and minimizes the onus on the EPA. While she also relies upon the aforementioned criterion set by State Farm, she asserts that courts may maintain agency actions if “the agency’s path may reasonably be discerned,” as established in Bowman Transportation, Inc. v. Arkansas-Best Freight System, Inc. (1974). As such, even if agencies were to fail to completely expound upon the basis of their policies, courts would not necessarily immediately qualify their actions as arbitrary or capricious; instead, courts could utilize their discretion to determine if the agencies gave due consideration to critical aspects. Accordingly, Barrett determined that the EPA had suitably addressed public comments and explained its methodology relative to the FIP. The dissimilar applications of the arbitrary and capricious standard, the first of which established a more severe test relative to the EPA, resulted in two different conclusions.
The Supreme Court’s decision was not only characterized by ambiguity but also disregarded the historical and judicial context in which the EPA has been allowed to operate. Traditionally, courts have held that their judgment cannot replace that of federal agencies. Elucidated in Prometheus Radio Project and State Farm, this principle proposes that courts should defer to agencies’ judgments when agencies explain and act reasonably. Despite the majority opinion’s approach in Ohio v. EPA, challenges to the authority of federal bodies historically required an abundance of grounded evidence and the Court privileged the agencies’ expertise.
The ruling in Ohio v. EPA has left the shaping of domestic environmental law largely to politicians and states, reducing the possibility of its creation and enforcement in the future. The transfer of authority from the EPA to states as demonstrated through the Resource Conservation and Recovery Act (RCRA) highlights the threat that Ohio v. EPA presents to the implementation of environmental policies. In 1980, Congress exempted waste derived from fracking from the RCRA and states became responsible for its regulation. Since then, states have mishandled toxic pollutants, failing to ensure that they move through facilities that specialize in toxic pollutant disposal. Ohio v. EPA limits the EPA’s ability to enforce environmental standards, suggesting that the Supreme Court has enabled states to prioritize their own economic interests.
Consequently, the Supreme Court’s ruling will impact public health in multiple states as it exacerbates issues related to free-riding and the tragedy of the commons. Free-riding–which occurs when states benefit from other states’ actions–and the tragedy of the commons–which arises when individuals deplete shared resources–will inevitably lead some states to bear an unequal burden. In the context of Ohio v. EPA, some states’ environmental policies targeting air pollution might be advantageous to other states which rely on such industries as crude oil production and choose not to address emissions. Simultaneously, these neighboring states with environmental laws may be subject to air pollutants from other states entering their airspace.
The ruling in Ohio v. EPA sets a dangerous precedent relative to the authority of the EPA and domestic environmental law and establishes further precedent. Since the Supreme Court has expressed a readiness to accept the malleable arbitrary and capricious standard as an argument and a tool to undermine the authority of federal administrative agencies, lower courts will also likely do so in the future.
By Kayla Nia
Edited by Jacqueline Hutchins
Section IV: The Precedent of Ohio v. EPA: A Threat to Federal Regulation and Public Health
The malleable interpretation and application of the APA’s arbitrary and capricious standard permit courts to make internally distinct and divergent decisions and to rule contrary to established precedent asserting deference to the expertise of federal agencies. Since the Supreme Court’s decision in Ohio v. EPA calls into question the power of the EPA, it will detrimentally affect the enforcement of environmental legislation in the United States. Not only does this decision restrict the EPA’s ability to implement its proposed FIP to meet the standards of the Clean Air Act, but it also generally threatens the authority of federal regulatory agencies.
In addition to the effective implementation of environmental legislation, the public health of U.S. citizens is put at risk. By ruling in a manner contrary to the precautionary principle, the Supreme Court has prioritized economic interests over public health. As the Supreme Court’s majority has decided to grant a stay, it is overlooking the potential harm that is likely to be done to the citizens of the complainant states and the states located downwind.
Since the Supreme Court has demonstrated its willingness to restrict powers provided to administrative bodies and to contest long-standing legal doctrines, Ohio v. EPA sets a risky precedent which threatens to compromise public health and environmental regulation in the United States.
By Kayla Nia
Edited by Jacqueline Hutchins