Ohio v. Environmental Protection Agency


Should the Supreme Court stay implementation of the EPA’s “Good Neighbor Plan,” a federal default implementation plan for emissions reduction, after that organization disapproved of the emissions reductions plans of twenty-three different states and attempted to implement their own federal plan?

Oral argument: 
February 21, 2024

This challenge to administrative action by numerous states, including Ohio (“Ohio et al.”) asks the Court to determine whether a stay of enforcement of the Environmental Protection Agency (“EPA”) default emissions regulations, named the “Good Neighbor Provision,” is appropriate, pending review of the legality of the EPA’s action under the Clean Air Act (CAA). Ohio et al. maintain that they are requesting a stay, which should be approved when considering the irreparable harm to state parties as a result of the implementation of the federal-default rule. Meanwhile, the EPA claims Ohio et al. are actually requesting an injunction, which should only be granted in exceptional circumstances. Ohio et al. further argue that the agency’s disapproval of their state-level implementation plans was an “arbitrary and capricious” action because the EPA failed to consider that state courts would limit the applicability of the federal-implementation plan, leading to a less effective rule. The EPA counters that its consideration of the “reasonableness” of the plan was adequate at the time of its initial promulgation and that it was not required to consider subsequent legal action. The outcome of this case has significant implications regarding the transition to greener energy, specifically related to economic costs, and the success of environmental goals.

Questions as Framed for the Court by the Parties 

(1) Whether the court should stay the Environmental Protection Agency’s federal emission reductions rule, the Good Neighbor Plan; and (2) whether the emissions controls imposed by the rule are reasonable regardless of the number of states subject to the rule.


Under the Clean Air Act (“CAA”), states are required to submit a plan that provides for the “implementation, maintenance, and enforcement” of ambient air quality standards consistent with those promulgated by the Environmental Protection Agency (“EPA”). 42 U.S.C. § 7410(a)(1). These standards are promulgated pursuant to congressional findings that pollution is often a regional problem that transcends state borders and that requires cooperation among federal, regional, state, and local officials. Id. In accordance with these shared responsibilities, the scheme “gives each State the initial opportunity to submit a plan that will achieve compliance with” EPA requirements. Brief for Respondent, United States Environmental Protection Agency (“EPA”) at 1−2. If the state fails to complete their obligations, the EPA must put forward their own plan, which is known as “the Good Neighbor Provision.” Id. at 2.

In February 2022, the EPA proposed the Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality Standards (“NAAAQS”) which affected 26 states. Good Neighbor Plan for 2015 Ozone National Ambient Air Quality Standards (“NAAQS”). The plan has the goal of ensuring the 2015 Ozone National Ambient Air Quality Standards were maintained, by enforcing requirements for industrial sources of power within 26 states. Id. Specifically, sources of pollution in upwind states reduce pollution in order to limit the impact upon downwind states. Brief for Respondent at 1. Under the “Good Neighbor Plan,” states have an initial opportunity to submit a plan to the EPA that will follow NAAAQS guidelines. Id. However, after a state fails to do so, the EPA must promulgate a federal rule to address the NAAAQS guideline. Id. In February 2023, the EPA found that 23 states had failed to submit an adequate plan under NAAAQS and decided to promulgate their own plan for an emissions-control program. Id. at 2. After being submitted to public Notice and Comment, the rule was finalized and published on June 6, 2023. Good Neighbor Plan for 2015 Ozone National Ambient Air Quality Standards (“NAAQS”). Ultimately, the Rule applied to 23 upwind states; however, after a series of appeals filed across the United States, the relevant regional courts have stayed the rejection of 12 state plans while separate litigation takes place. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, Ohio et al. at 16. In compliance to these stays, the EPA issued two interim final rules temporarily exempting those 12 states from of the Plan. 88 Fed. Reg. 49295 (July 21, 2023); 88 Fed. Reg. 67102 (Sept. 29, 2023).

Three states and several industry stakeholders have filed petitions for review in the D.C. Circuit challenging the Rule as arbitrary and capricious under the Administrative Procedure Act. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, at 2. These three states have sought a stay of the plan’s implementation pending the disposition of their petitions for review. Id. The D.C. Circuit denied their stay. Id at 13. Accordingly, those three states and industry stakeholders have requested an Emergency Stay from the United States Supreme Court. Id. at 2.



Ohio et al. argue that the EPA’s Good Neighbor Rule should be subject to a stay while the case proceeds in the lower courts. Reply in Support of State Applicant’s Emergency Application for a Stay of Administrative Action, at 1−2. The applicants rely on the factors expressed in the case Nken v. Holder to establish their case for a stay: (1) a strong showing of likelihood of success on the merits; (2) whether the applicant will be irreparably harmed; (3) whether the opposing party will be irreparably harmed if a stay is granted; and (4) a consideration of the public interest. Id. at 2. Ohio et al. argue that the Supreme Court has in the past stayed agency actions pending review. Id. Ohio et al. further articulate that there is no need to meet the Supreme Court’s injunction standard, which requires a higher standard of justification. Id. Ohio et al. maintain that they are simply requesting a stay, and that to grant a stay, the Supreme Court need only consider the strength of the state’s underlying claims, under the traditional Nken factors. Id. Furthermore, Ohio et al. state that significant costs and economic injuries will be imposed on states if the stay is not granted, leading to irreparable harm. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, Ohio et al. at 24−25. In contrast, Ohio et al. argue in favor of granting the stay, the EPA initially delayed the implementation of the air-quality standards, so the EPA faces no undue harm if the stay is granted, and there is public interest in ensuring the correct application of the law. Id. at 27.

The EPA maintains that Ohio et al. are not requesting a stay, but rather an injunction against the enforcement of the new rule, which requires a much higher standard, and should only be granted under exceptional circumstances. Brief for Respondent, United States Environmental Protection Agency (“EPA”) at 16−17. Specifically, New York et al. articulate that a stay should only be granted if there is a “reasonable probability” that four Justices would grant certiorari. Brief for States of New York et al. Respondents in Opposition to Applications for Stays, at 12. Furthermore, New York et al. claim that the harm from a stay outweighs any possible benefits. Id. at 13. New York et al. state that the environmental effects upon other states by Ohio et al. not complying with EPA guidelines means that a stay is against the public interest. Id. at 14−15. New York et al. further contend that there is no irreparable harm suffered by the applicant states absent a stay, because all costs “are either unconnected to the challenged Rule or too remote and speculative to justify a stay.” Id. at 20.


On the merits, Ohio et al. argue that several aspects of the EPA’s rule are arbitrary and capricious within the meaning of the Administrative Procedure Act; that is, Ohio et al. contend that the EPA constructed their rule without logical and rational consideration of the relevant factors. Reply in Support of State Applicant’s Emergency Application for a Stay of Administrative Action, at 4. Specifically, Ohio et al. contend that the EPA was required –– but failed –– to consider the potential consequences of adverse legal decisions to its rule, such as its viability. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, at 16. Ohio et al. indicate that, after the EPA’s exemption, the federal plan has become a failure, regulating only “11% of the emissions from electric-generating units” and only “40% of emissions from industrial sources” for a total exemption of approximately 75% of the emissions. Id. at 17. According to Ohio et al., such a result was “entirely foreseeable” because of the EPA’s desire to manage the Clean Air Act, rather than passing on those obligations to states as required by the statutory scheme. Id. at 1718. Ohio et al. argue that the EPA arbitrarily and capriciously disapproved of state plans and was aware that states were going to contest the application of the EPA federal plan. Id. at 19. Therefore, the EPA reasonably would have foreseen that their plan would not be effective, and would not apply uniformly to all affected states. Id. at 20. In other words, Ohio et al. maintain that the EPA failed to adequately assess the potential legal consequences in alleged attempt to aggrandize their regulatory power under the Clean Air Act. Id.

Additionally, Ohio et al. similarly criticize the failure to consider judicial stays of the rule between its initial announcement in March 2022 and its final announcement in June of that year, which would have alerted the agency to the action’s arbitrary and capricious nature. Reply in Support of State Applicant’s Emergency Application for a Stay of Administrative Action at 11. Ohio et al. contend that this separate duty continues until “publication” of the final rule, such that it was improper for the EPA to fail to consider the judicial stays regardless of whether the stays were presented to the EPA before initial promulgation in March. Id. Consequently, they assert, the EPA improperly frames the stays as information not available to the agency for incorporation into its action; instead, the agency should have sua sponte evaluated those stays as contributing to its understanding of whether the action in question was “arbitrary and capricious” in nature. Id.

Furthermore, Ohio et al. contend that the EPA misstates the process requirement regarding objections to an administrative rule. Id. at 8. Ohio et al. argue that the Clean Air Act requires only those objections to be made with “reasonable specificity” during notice-and-comment––not that those objections come from the party challenging the rule in Court. Id. Since commentors during the notice-and-comment period raised, with reasonable specificity (though not in the precise terms now under litigation) the objections now raised by the state applicants, these applicants argue that this is sufficient to preserve judicial review of the claim. Id.

The EPA responds that they were under no obligation to reconsider the rule’s reasonableness due to events occurring after the rule was promulgated. Brief for Respondent at 19. The EPA refers to the Clean Air Act which says, in part, “[o]nly an objection to a rule which was raised with reasonable specificity during the period for public comment may be raised” as an objection in federal court. Id. The EPA argues that since the stay orders were issued months after the Good Neighbor Rule was signed and made public, they do not affect the legality of the Good Neighbor Rule when it was initially introduced. Id. at 20. Similarly, the EPA maintains that the rule remains reasonable and can function in the remaining states, even though a smaller group of upwind states are subject to the rule. Id. at 19. The EPA argues that because there had been no stays prior to the finalization of the rule, the EPA had no requirement of foreseeability. Id. at 26.

Moreover, EPA argues that Ohio et al., to raise their objections with respect to adverse legal determinations, needed to do so during notice and comment; otherwise, they must raise these objections through an initial petition for reconsideration. Id. at 20. Since Ohio et al. have not exhausted those requirements, the EPA contends that the Supreme Court does not have authority to answer Ohio et al.’s question. Id. at 20.

The EPA further criticizes the states use of these stays as a means to undermine the lawfulness of the rule. Id. at 20. Citing DHS v. Regents of the Univ. of Cal. (2020), they contend that the lawfulness of the federal implementation plan need only be evaluated at the time the initial rule was filed. Id. at 20–21. The EPA further argues that any affected state could have petitioned for a reconsideration of the action in light of those stays to alert the agency to changing circumstances surrounding the rule. Id. at 21. In failing to exhaust these remedies and instead resorting to the expedient of judicial challenge, the EPA challenges, Ohio et al. have “evade[d]” proper procedure and deprived the agency of an ability to adequately shape its rule in response to those critiques. Id. And at any rate, they argue, the affected states have incorrectly challenged the disapproval of the alternative state plans, instead of challenging the adequacy of the federal-implementation plan. Id.



Ohio et al. assert that the EPA federal plan, if implemented, would engender large compliance issues, as states would have to overhaul and enhance their power plants while judicial review is pending. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, at 10. Furthermore, the federal plan would limit surplus allowances, which Ohio et al. maintain limits the capacity of these power plants to continue to operate while modifications are being made, which would significantly undermine the power grid of affected states. Id. at 11, 25. Additionally, state costs would include not just compliance but also continued monitoring, which would limit the available resources for other infrastructure projects. Id. at 25.

The EPA argues that states would not have to incur significant compliance costs because the emission deadlines do not come into effect until May 2026, and that regulated parties “should be able to avoid significant expenditures” while judicial review is pending. Brief for Respondent, EPA at 44. Even then, the EPA points to the availability of extensions for up to three years. Id. at 46. Similarly, the EPA argues that these delays in implementation would diminish administrative costs as well. Id. at 46. The EPA argues there is no clear proof that complying with the federal rule will undermine natural-gas reliability. Id. at 45. Additionally, the EPA dismisses concerns regarding the stability of the electricity grid, arguing that it would not limit the reliability of the electric system. Id. at 47. Furthermore, New York et al. articulate that by not complying with the Good Neighbor rule pending judicial review, ozone pollution will continue to affect downwind states, which can create major health issues for state citizens. Id. at 2–3.


Ohio et al. contend that imposing the EPA’s federal-implementation plan on states without approved plans would contravene the Clean Air Act’s goals of cooperative federalism. Brief of State Applicants’ Emergency Application for a Stay of Administrative Action, at 3. Ohio et al. argue that the imposition of this plan so soon after the EPA disapproved of state plans frustrates the ability of states to assure air quality in the way most suitable to their capabilities and resources. Id. Under the Clean Air Act, states argue, state implementation plans must be permitted the dexterity to meet the Act’s minimum requirements without undue intervention by the federal government. Id. at 2–3. This flexibility is especially vital in “upwind” states, they contend, where EPA regulations require plans to include “good neighbor” provisions that adequately account for pollution carried across state lines. Id. And even if the EPA disapproves of a plan, Ohio et al. contend, the EPA is under an ongoing obligation to work with the states to meet minimum requirements. Id. at 4. In unilaterally requiring states to adhere to the federal default plan, Ohio et al. argue, the EPA is substituting its judgment for state discretion and thereby impeding the Act’s “experiment in cooperative federalism.” Id. at 3.

The EPA counters that the cooperative federalism contemplated by the Act has been impeded by state intransigeance rather than federal commandeering. Brief for Respondent at 48. They contend that the failure of the state parties to effectively cooperate requires the affirmative intervention of the federal government to protect the harmed parties––namely, downwind states. Id. Consequently, they argue, it is consistent with the spirit of cooperative federalism to “balance the interests of upwind and downwind States” by imposing the federal plan on a state that has failed to adequately meet the requirements of the Clean Air Act. Id. The requirement that states adequately account for the interdependency of their air pollution, the EPA argues, is the essential “cooperative” element contemplated by the Act. Id.