OHIO ET AL v. ENVIRONMENTAL PROTECTION AGENCY ET AL
No. 23A349
Supreme Court of the United States
June 27, 2024
(Slip Opinion) OCTOBER TERM, 2023 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
OHIO ET AL v. ENVIRONMENTAL PROTECTION AGENCY ET AL
No. 23A349. Argued February 21, 2024—Decided June 27, 2024*
The Clean Air Act envisions a collaborative effort between States and the federal government to regulate air quality. When the Environmental Protection Agency sets standards for common air pollutants, States must submit a State Implementation Plan, or SIP, providing for the “implementation, maintenance, and enforcement” of those standards in their jurisdictions. See
In 2015, EPA revised its air-quality standards for ozone, thus triggering a requirement for States to submit new SIPs. Years later, EPA announced its intention to disapprove over 20 SIPs because the agency believed they had failed to address adequately obligations under the Good Neighbor Provision. During the public-comment period for the proposed SIP disapprovals, EPA issued a single proposed FIP to bind
*Together with No. 23A350, Kinder Morgan, Inc., et al. v. Environmental Protection Agency et al.; No. 23A351, American Forest & Paper Assn. et al. v. Environmental Protection Agency, No. 23A384, United States Steel Corp. v. Environmental Protection Agency et al., also on applications for stay.
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Syllabus
all those States. EPA designed its proposed FIP based on which emissions-control measures would maximize cost-effectiveness in improving ozone levels downwind and on the assumption the FIP would apply to all covered States.
A number of the remaining States and industry groups challenged the FIP in the D. C. Circuit. They argued that EPA’s decision to apply the FIP after so many other States had dropped out was “arbitrary” or “capricious,” and they asked the court to stay any effort to enforce the FIP against them while their appeal unfolded. The D. C. Circuit denied relief, and the parties renewed their request in this Court.
Held: The applications for a stay are granted; enforcement of EPA’s rule against the applicants shall be stayed pending the disposition of the applicants’ petition for review in the D. C. Circuit and any petition for writ of certiorari, timely sought. Pp. 9–20.
(a) When deciding an application for a stay, the Court asks (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. Nken v. Holder, 556 U. S. 418, 434. When States and other parties seek to stay the enforcement of a federal regulation against them, often “the harms and equities [will be] very weighty on both sides.” Labrador v. Poe, 601 U. S. ___, ___ (KAVANAUGH, J., concurring in grant of stay). Because that is true here, resolution of applicants’ stay request ultimately turns on the first question: Who is likely to prevail at the end. See Nken, 556 U. S., at 434. Pp. 9–11.
(b) Applicants are likely to prevail on their arbitrary-or-capricious claim. An agency action qualifies as “arbitrary” or “capricious” if it is not “reasonable and reasonably explained.” FCC v. Prometheus Radio Project, 592 U. S. 414, 423. Thus, the agency must offer “a satisfactory explanation for its action[,] including a rational connection between the facts found and the choice made” and cannot simply ignore “an important aspect of the problem.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43.
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Syllabus
EPA’s plan rested on an assumption that all the upwind States would adopt emissions-reduction measures up to a uniform level of costs to the point of diminishing returns. Commenters posed their concerns that if upwind States fell out of the planned FIP, the point at which emissions-control measures maximize cost-effective downwind air-quality improvements might shift. To this question, EPA offered no reasoned response. As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not “reasonably explained,” Prometheus Radio Project, 592 U. S., at 423, and that it instead ignored “an important aspect of the problem” before it, State Farm Mut. Automobile Ins. Co., 463 U. S., at 43. Pp. 11–13.
(c) EPA’s
Applications for stay granted.
GORSUCH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and KAVANAUGH, JJ., joined. BARRETT, J., filed a dissenting opinion, in which SOTOMAYOR, KAGAN, and JACKSON, JJ., joined.
OHIO ET AL v. ENVIRONMENTAL PROTECTION AGENCY ET AL
Nos. 23A349, 23A350, 23A351 and 23A384
Supreme Court of the United States
June 27, 2024
Cite as: 603 U. S. ____ (2024) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, pio@supremecourt.gov, of any typographical or other formal errors.
SUPREME COURT OF THE UNITED STATES _________________ Nos. 23A349, 23A350, 23A351 and 23A384 _________________ OHIO, ET AL. 23A349 v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. KINDER MORGAN, INC., ET AL. 23A350 v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
JUSTICE GORSUCH delivered the opinion of the Court.
The Clean Air Act envisions States and the federal government working together to improve air quality. Under that law’s terms, States bear “primary responsibility” for developing plans to achieve air-quality goals.
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Here, the federal government announced its intention to reject over 20 States’ plans for controlling ozone pollution. In their place, the government sought to impose a single, uniform federal plan. This litigation concerns whether, in adopting that plan, the federal government complied with the terms of the Act.
I
A
“The Clean Air Act regulates air quality through a federal-state collaboration.” EME Homer City Generation, L.P. v. EPA, 795 F. 3d 118, 124 (CADC 2015). Periodically, the Environmental Protection Agency (EPA) sets standards for common air pollutants, as necessary to “protect the public health.”
At the same time, States must design these plans with their neighbors in mind. Because air currents can carry pollution across state borders, emissions in upwind States sometimes affect air quality in downwind States. See EME Homer, 572 U. S., at 496. To address that externality problem, under the Act’s “Good Neighbor Provision,” state plans must prohibit emissions “in amounts which will . . . contribute significantly to nonattainment in, or interfere with maintenance by, any other State” of the relevant air-quality standard.
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Because the States bear “primary responsibility” for developing compliance plans,
B
A layer of ozone in the atmosphere shields the world from the sun’s radiation. See National Resources Defense Council v. EPA, 464 F. 3d 1, 3 (CADC 2006). But closer to earth, ozone can hurt more than it helps. Forming when sunlight interacts
To mitigate those and other problems, in 2015 EPA revised its air-quality standards for ozone from 75 to 70 parts per billion. Id., at 65293–65294. That change triggered a requirement for States to submit new SIPs. Id., at 65437. Along the way, EPA issued a guidance document advising States that they had “flexibility” in choosing how to address their Good Neighbor obligations. See EPA, Memorandum, Information on the Interstate Transport State Implementation Plan Submissions for the 2015 Ozone National Ambient Air Quality Standards 3 (Mar. 27, 2018). With that and other guidance in hand, many (though not all) States submitted SIPs. See 84 Fed. Reg. 66612 (2019). And many
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of the States that did submit SIPs said that they need not adopt emissions-control measures to comply with the Good Neighbor Provision because, among other things, they were not linked to downwind air-quality problems or they could identify no additional cost-effective methods of controlling the emissions beyond those they were currently employing. See, e.g., 87 Fed. Reg. 9798, 9810 (2022); 87 Fed. Reg. 9545, 9552 (2022); see generally 88 Fed. Reg. 9336, 9354–9361 (2023).
For over two years, EPA did not act on the SIPs it received. See, e.g., 87 Fed. Reg. 9838, 9845–9851 (2022). Then, in February 2022, the agency announced its intention to disapprove 19 of them on the ground that the States submitting them had failed to address adequately their obligations under the Good Neighbor Provision.1 A few months later, the agency proposed disapproving four more SIPs.2 Pursuant to the Act, the agency issued its proposed SIP disapprovals for public comment before finalizing them. See
C
During that public comment period, the agency proposed a single FIP to bind all 23 States.3 87 Fed. Reg. 20036, 20038 (2022). Rather than continue to encourage “‘flexi-
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bilit[y]’” and different state approaches, EPA now apparently took the view that “[e]ffective policy solutions to the problem of interstate ozone transport” demanded that kind of “uniform framework” and “[n]ationwide consistency.” 87 Fed. Reg. 9841; see 87 Fed. Reg. 20073. The FIP the agency proposed set as its target the reduction of the emissions of one ozone precursor in particular: nitrous oxide. See id., at 20038. And it sought to impose nitrous oxide emissions-control measures that “maximized cost-effectiveness” in achieving “downwind ozone air quality improvements.” Id., at 20055; see also id., at 20043.
In broad strokes, here is how EPA’s proposed rule worked to eliminate a State’s “significant contribution” to downwind ozone problems. First, the agency
To pick which measures would “maximiz[e] cost-
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effectiveness” in achieving “downwind ozone air quality improvements,” 87 Fed. Reg. 20055, EPA focused on what it called the “‘knee in the curve,’” or the point at which more expenditures in the upwind States were likely to produce “very little” in the way of “additional emissions reductions and air quality improvement” downwind, id., at 20095 (hyphenation omitted). EPA used this point to select a “uniform level” of cost, and so a uniform package of emissions-reduction tools, for upwind States to adopt. Id., at 20076. And EPA performed this analysis on two “parallel tracks”—one for power plants, one for other industries. Ibid. Pursuant to the Clean Air Act,
Immediately, commenters warned of a potential pitfall in the agency’s approach. EPA had determined which emissions-control measures were cost effective at addressing downwind ozone levels based on an assumption that the FIP would apply to all covered States. But what happens if some or many of those States are not covered? As the commenters portrayed the SIPs, this was not an entirely speculative possibility. Many believed EPA’s disapprovals of the SIPs were legally flawed. See, e.g., Comments of Missouri Dept. of Natural Resources 3 (June 17, 2022) (referencing “all the technical, legal, and procedural issues” with the proposed SIP disapproval); see also, e.g., Comments of Louisiana Dept. of Environmental Quality 1–3 (June 21, 2022); Comments of Texas Comm’n on Environmental Quality 2–4 (June 21, 2022); EPA, Response to Public Comments on Proposed Rule 9–11 (EPA–HQ–OAR–2021–0668). They added that EPA’s FIP was “inextricably linked” to the SIP disapprovals. E.g., Comments of Missouri Dept. of Natural Resources, at 4. Without a SIP disapproval or missing SIP, after all, EPA could not include a State in its FIP. See, e.g., id., at 3; supra, at 3.
Commenters added that failing to include a State could
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have consequences for the proposed FIP. If the FIP did not wind up applying to all 23 States as EPA envisioned, commenters argued, the agency would need “to conduct a new assessment and modeling of contribution and subject those findings to public comment.” E.g., Comments of Air Stewardship Coalition 13–14 (June 21, 2022); Comments of Portland Cement Association 7 (June 21, 2022).
As it happened, ongoing litigation over the SIP disap-
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provals soon seemed to vindicate at least some of the commenters’ concerns. Two circuits issued stays of EPA’s SIP denials for four States. See Order in No. 23–60069 (CA5, May 1, 2023) (Texas and Louisiana); Order in No. 23–1320 (CA8, May 25, 2023) (Arkansas); Order in No. 23–1719 (CA8, May 26, 2023) (Missouri).
Despite those comments and developments, the agency proceeded to issue its final FIP. 88 Fed. Reg. 36654 (2023).5 In response to the problem commenters raised, EPA adopted a severability provision stating that, should any jurisdiction drop out, its rule would “continue to be implemented as to any remaining jurisdictions.” Id., at 36693. But in doing so, EPA did not address whether or why the same emissions-control measures it mandated would continue to further the FIP’s stated purpose of maximizing cost-effective air-quality improvement if fewer States remained in the plan.
D
After EPA issued its final FIP, litigation over the agency’s SIP disapprovals continued. One court after another issued one stay after another.6 Each new stay meant another
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State to which EPA could not apply its FIP. See
A number of the remaining States and industry groups challenged the remnants of the FIP in the D. C. Circuit. They pointed to the Act’s provisions authorizing a court to “reverse any . . . action” taken in connection with a FIP that is “arbitrary” or “capricious.”
II
A
Stay applications are nothing new. They seek a form of interim relief perhaps “as old as the judicial system of the nation.” Scripps-Howard Radio, Inc. v. FCC, 316 U. S. 4, 17 (1942). Like any other federal court faced with a stay
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request, we must provide the applicants with an answer—“grant or deny.” Labrador v. Poe, 601 U. S. ___, ___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2).
In deciding whether to issue a stay, we apply the same “sound . . . principles” as other federal courts. Nken v. Holder, 556 U. S. 418, 434 (2009) (internal quotation marks omitted). Specifically, in this litigation, we ask (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. Ibid.; States’ Application 13; Response in Opposition for Respondent EPA in No. 23A349 etc., p. 16 (EPA Response).9
When States and other parties seek to stay the enforcement of a federal regulation against them, often “the harms and equities [will be] very weighty on both sides.” Labrador, 601 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 3). That is certainly the case here, for both sides have strong arguments with respect to the latter three Nken factors. On one side of the ledger, the federal
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disadvantage” to their exempt peers. States’ Application 21. The States and the private applicants also stress that complying with the FIP during the pendency of this litigation would require them to incur “hundreds of millions[,] if not billions of dollars.” Tr. of Oral Arg. 96. Those costs, the applicants note, are “nonrecoverable.” Thunder Basin Coal Co. v. Reich, 510 U. S. 200, 220–221 (1994) (Scalia, J., concurring in part and concurring in judgment); see, e.g., States’ Application 24; Application for American Forest & Paper Association et al. 25; see also Alabama Assn. of Realtors v. Department of Health and Human Servs., 594 U. S. 758, 765 (2021) (per curiam).
Because each side has strong arguments about the harms they face and equities involved, our resolution of these stay requests ultimately turns on the merits and the question who is likely to prevail at the end of this litigation. See Nken, 556 U. S., at 434; Labrador, 601 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 4).
B
When it comes to that question, the parties agree on the rules that guide our analysis. The applicants argue that a court is likely to hold EPA’s final FIP “arbitrary” or “capricious” within the meaning of the Act and thus enjoin its enforcement against them.
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facts found and the choice made.” Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983) (internal quotation marks omitted). Accordingly, an agency cannot simply ignore “an important aspect of the problem.” Ibid.
We agree with the applicants that EPA’s final FIP likely runs afoul of these long-settled standards. The problem stems from the way EPA chose to determine which emissions “contribute[d] significantly” to downwind States’ difficulty meeting national ozone standards.
Although commenters posed this concern to EPA during the notice and comment period, see Part I–C, supra, EPA offered no reasoned response. Indeed, at argument the government acknowledged that it could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and
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command the same emissions-control measures if conducted for, say, just one State. Tr. of Oral Arg. 58–59. Perhaps there is some explanation why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvements. But if there is an explanation, it does not appear in the final rule. As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not “reasonably explained,” Prometheus Radio Project, 592 U. S., at 423, that the agency failed to supply “a satisfactory explanation for its action[,]” State Farm Mut. Automobile Ins. Co., 463 U. S., at 43, and that it instead ignored “an important aspect of the problem” before it, ibid. The applicants are therefore likely to be entitled to “revers[al]” of the FIP’s mandates on them.
III
A
Resisting this conclusion, EPA advances three alternative arguments.
First, the government insists, the agency did offer a reasoned response to the applicants’ concern, just not the one they hoped. When finalizing its rule in response to public comments, the government represents, “the agency did consider whether the [FIP] could cogently be applied to a subset of the 23 covered States.” EPA Response 27; see also post, at 17–18 (BARRETT, J., dissenting). And that consideration, the government stresses, led EPA to add a “severability” provision to its final rule in which the agency announced that the FIP would “‘continue to be implemented’” without regard to the number of States remaining, even if just one State remained subject to its terms. EPA Response
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27 (quoting 88 Fed. Reg. 36693). In support of its severability provision, EPA cited, among other things, its intent to address “‘important public health and environmental benefits” and encourage reliance by others “on th[e] final rule in their planning.’” Ibid.
None of this, however, solves the agency’s problem. True, the severability provision highlights that EPA was aware of the applicants’ concern. But awareness is not itself an explanation. The severability provision highlights, too, the agency’s desire to apply its rule expeditiously and “‘to the greatest extent possible,’” no matter how many States it could cover.
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Second, the government pivots in nearly the opposite direction. Now, it says, if its final rule lacks a reasoned response to the applicants’ concern, it is because no one raised that concern during the public comment period. And, the agency stresses, a litigant may pursue in court only claims premised on objections first “‘raised with reasonable specificity’” before the agency during the public comment period. Id., at 19–20 (quoting
We cannot agree. The Act’s “reasonable specificity” requirement does not call for “a hair-splitting approach.” Appalachian Power Co. v. EPA, 135 F. 3d 791, 817 (CADC 1998). A party need not “rehears[e]” the identical argument made before the agency; it need only confirm that the government had “notice of [the] challenge” during the public comment period and a chance to consider “in substance, if not in form, the same objection now raised” in court. Id., at 818; see also, e.g., Bahr v. Regan, 6 F. 4th 1059, 1070 (CA9 2021).
Here, EPA had notice of the objection the applicants seek to press in court. Commenters alerted the agency that, should some States no longer participate in the plan, the agency would need to return to the drawing board and “conduct a new assessment and modeling of contribution” to determine what emissions-control measures maximized cost effectiveness in securing downwind ozone air-quality improvements. Comments of Air Stewardship Coalition, at 13–14; see also Part I–C, supra (noting examples of other
such promulgation”),
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comments). And, as we have just seen, EPA’s own statements and actions confirm the agency appreciated that concern. In preparing the final rule in response to public comments, the agency emphatically insists, it “did consider whether the [r]ule could cogently be applied to a subset of the 23 covered States.” EPA Response
Third, the government pursues one more argument in the alternative. As the agency sees it, the applicants must return to EPA and file a motion asking it to reconsider its final rule before presenting their objection in court. They must, the agency says, because the “grounds for [their] objection arose after the period for public comment.”
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however, EPA had the basis of the applicants’ objection before it during the comment period. It chose to respond with a severability provision that in no way grappled with their concern. Nothing requires the applicants to return to EPA to raise (again) a concern EPA already had a chance to address.
Taking the government’s argument (much) further, the dissent posits that every “objection that [a] final rule was not reasonably explained” must be raised in a motion for reconsideration. Post, at 7 (internal quotation marks omitted; emphasis deleted). But there is a reason why the government does not go so far. The Clean Air Act opens the courthouse doors to those with objections the agency already ignored. If an “objection [is] raised with reasonable specificity during the period for public comment” but not reasonably addressed in the final rule, the Act permits an immediate challenge.
B
With the government’s theories unavailing, the dissent advances others of its own. It begins by suggesting that the problem the applicants raise was not “‘important’” enough to warrant a reasoned reply from the agency because the methodology EPA employed in its FIP “appear[s]
19. Then, coming at the same point from another direction, the dissent seeks to excuse the agency’s lack of a reasoned reply as “harmless” given, again, “the apparent lack of connection between the number of States covered and the FIP’s methodology.” Post, at 20.
The trouble is, if the government had arguments along these lines, it did not make them. It did not despite its ample resources and voluminous briefing. See supra, at 9. This Court “normally decline[s] to entertain” arguments “forfeited” by the parties. Kingdomware Technologies, Inc. v. United States, 579 U. S. 162, 173 (2016). And we see no persuasive reason to depart from that rule here.
If anything, we see one reason for caution after another. Start with the fact the dissent itself expresses little confidence in its own theories, contending no more than it “appear[s]” EPA’s methodology did not depend on the number of covered States. Post, at 14 (emphasis added). Add to that the fact that, at oral argument, even the government refused to say with certainty that EPA would have reached the same conclusions regardless of which States were included in the FIP. See Tr. of Oral Arg. 59. Combine all that with the further fact that, in developing the FIP, EPA said it used the “same regulatory framework” this Court described in EME Homer City Generation, L. P. v. EPA, 572 U. S. 489. E.g., EPA Response 7–8. And, at least as the Court described that framework, state-level analyses play a significant role in EPA’s work.13 Finally, observe that, while the Act seems to anticipate, as the dissent suggests,
that the agency’s “procedural determinations” may be subject to harmless-error review,
*
It is so ordered.
OHIO, ET AL. v. ENVIRONMENTAL PROTECTION AGENCY, ET AL.
Nos. 23A349, 23A350, 23A351 and 23A384
SUPREME COURT OF THE UNITED STATES
June 27, 2024
Cite as: 603 U. S. ____ (2024)
BARRETT, J., dissenting
JUSTICE BARRETT, with whom JUSTICE SOTOMAYOR, JUSTICE KAGAN, and JUSTICE JACKSON join, dissenting.
The Court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits. In so doing, the Court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record. While the Court suggests that the EPA failed to explain itself sufficiently in response to comments, this theory must surmount sizable procedural obstacles and contrary record
evidence. Applicants therefore cannot satisfy the stringent conditions for relief in this posture.
I
I will start by setting the record straight with respect to some important background.
First, the Court downplays EPA’s statutory role in ensuring that States meet air-quality standards. Ante, at 2–3. The Clean Air Act directs EPA to “establish national ambient air quality standards (NAAQS) for pollutants at levels that will protect public health.” EPA v. EME Homer City Generation, L. P., 572 U. S. 489, 498 (2014); see
Given the incentives of upwind States to underregulate the pollution they send downwind, the Act requires EPA to determine whether a State “has failed to submit an adequate SIP.” EME, 572 U. S., at 498; see
(per curiam);
Second, the Court fails to recognize that EPA’s SIP disapprovals may, in fact, be valid. EPA justified its findings that 23 States had failed to submit adequate SIPs. It found that these States all significantly contributed to ozone pollution in downwind States. See 88 Fed. Reg. 36656 (2023). But 21 of these States, including applicants,
Third, the Court claims that commenters on the proposed FIP warned that its emissions limits might change if it covered fewer States, but EPA failed to respond. Ante, at 6–8. Not exactly. As I will elaborate below, commenters merely criticized EPA’s decision to propose a FIP before its SIP disapprovals were final. EPA responded that this sequencing was “consistent with [its] past practice in [its] efforts to timely address good neighbor obligations”: Given the August 2024 deadline for certain States to comply with the 2015 ozone NAAQS, EPA was “obligated” to start the years-long process of promulgating a FIP so that one could be effective in time. EPA, Response to Public Comments on Proposed Rule 149–150, (EPA–HQ–OAR–2021–0668–1127, June 2023) (Response to Comments); see Wisconsin, 938 F. 3d, at 313–314.
Finally, the Court repeatedly characterizes the FIP as relying on an “assumption that [it] would apply to all covered
States.” Ante, at 6; see ante, at 12. But try as it might, the Court identifies no evidence that the FIP’s emissions limits would have been different for a different set of States or that EPA’s consideration of state-specific inputs was anything but confirmatory of the limits it calculated based on nationwide data. See ante, at 5–6, 19, n. 14. The Court leans on the fact that EPA “considered data specific to the emissions-producing facilities in [each] State” to calculate “how much each upwind State’s [NOx] emissions would fall” if the State’s emitters “adopted each [emissions-control] measure.” Ante, at 5 (citing EPA, Ozone Transport Policy Analysis Proposed Rule TSD 9–10, 13, 22–23, (EPA–HQ–OAR–2021–0668–0133, Feb. 2022) (Proposed Ozone Analysis)). But the Proposed Ozone Analysis makes clear that EPA did these state-specific calculations to determine each State’s “emissions budget.” Proposed Ozone Analysis 7–13. A State’s budget consists of the “emissions that would remain” after the State’s power plants meet the emissions limits that EPA independently calculated. 88 Fed. Reg. 36762; see Proposed Ozone Analysis 13 (“adjust[ed]” “unit-level emissions are summed up to the state level”); n. 6, infra. Of course each State’s emissions budget will depend on the emitters in that State. What matters is whether the limits the FIP imposes on each emitter depend on the number of States the FIP covers. Tellingly, the Court does not identify any NOx limit for any industry that relied on state-specific data.
On the contrary, as I will explain in Part II–B, the final rule and its supporting documents suggest that EPA’s methodology for setting emissions limits did not depend on the number of States in the plan, but on nationwide data for the relevant industries—and the FIP contains many examples of emissions limits that EPA created using nationwide inputs. Moreover, EPA has now confirmed this interpretation. During this litigation, EPA received petitions seeking reconsideration of the FIP on the ground that it
should not be
II
To obtain emergency relief, applicants must, at a minimum, show that they are likely to succeed on the merits, that they will be irreparably injured absent a stay, and that the balance of the equities favors them. Nken v. Holder, 556 U. S. 418, 425–426 (2009). Moreover, we should grant relief only if we would be likely to grant certiorari were the applicants’ case to come to us in the usual course. See Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concurring in denial of application for injunctive relief ); Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). In my view, the applicants cannot satisfy the stay factors. Most significantly, they have not shown a likelihood of success on the merits.
The Court holds that applicants are likely to succeed on a claim that the Good Neighbor Plan is “arbitrary” or “capricious.”
“[1] reasonable and [2] reasonably explained.” FCC v. Prometheus Radio Project, 592 U. S. 414, 423 (2021). The Court’s theory is that EPA did not “‘reasonably explai[n]’” “why the number and identity of participating States does not affect what measures maximize cost-effective downwind air-quality improvement.” Ante, at 13 (quoting only the second part of Prometheus Radio’s formulation (emphasis added)). So to be clear, the Court does not conclude that EPA’s actions were substantively unreasonable—e.g., that the FIP cannot rationally be applied to fewer States because a change in the number of participants would undermine its rationale or render it ineffective. Nor could it, given the significant evidence in the record (not to mention EPA’s denial of reconsideration) that the covered States did not, in fact, affect the plan’s emissions-reduction obligations. See Part II–B, infra. Thus, the only basis for the Court’s decision is the argument that EPA failed to provide “‘a satisfactory explanation for its action’” and a “reasoned response” to comments. Ante, at 12–13 (quoting Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 43 (1983)). There are at least three major barriers to success on such a claim.
A
The Clean Air Act imposes a procedural bar on the challenges that a plaintiff can bring in court: Only objections that were “raised with reasonable specificity during the period for public comment . . . may be raised during judicial review.”
challenging the plan itself, not the denial of reconsideration. So the procedural bar on objections not raised in the comments presents a significant obstacle—in two ways.
First, consider the Court’s basic theory: that EPA offered “no reasoned response” to comments allegedly questioning whether the plan’s emissions limits depend on the States covered. Ante, at 12. That EPA failed to adequately explain its final rule in response to comments is “an objection to the notice and comment process itself,” which applicants “obviously did not and could not have raised . . . during the period for public comment.” EME Homer City Generation, L. P. v. EPA, 795 F. 3d 118, 137 (CADC 2015) (Kavanaugh, J.). No one could have raised during the proposal’s comment period the objection that the “final rule was not ‘reasonably explained.’” Ante, at 13 (emphasis added).
The D. C. Circuit, on remand in EME Homer, considered a similar objection that EPA had “violated the Clean Air Act’s notice and comment requirements”: EPA had “significantly amend[ed] the Rule between the proposed and final versions without providing additional opportunity for notice and comment.” 795 F. 3d, at 137. But because this procedural objection could not have been raised during the comment period, “the only appropriate path for petitioners” under
Second, even putting aside this aspect of
Another collection of the Court’s inapposite comments relates to the inclusion of specific sources, emissions controls, and industries in the proposed plan—not States. See ante, at 7, n. 4. For example, one commenter argued that the “cost effectiveness of the requirement to employ SNCR will be highly variable, and is unlikely to meet EPA expecta-
tions in even the most optimistic case.” Comments of Indiana Municipal Power Agency 9 (June 20, 2022). That is a challenge to EPA’s endorsement of a particular emissions-control technology; it says nothing about the FIP’s dependence on a particular number of States. See also, e.g., Comments of Lower Colorado River Authority 21–22 (June 21, 2022). Similarly, another commenter argued that pulp and paper mills should not be included because the “maximum estimated improvement” in ozone levels from controlling their emissions would be “too small to even measure.” Comments of Wisconsin Paper Council 2 (June 21, 2022).2 An argument that the maximum benefits from regulating an industry are too small is not an argument that those benefits would become too small if fewer States were covered.3
The closest comment that the Court can find—which it quotes repeatedly—is one sentence that obliquely refers to some “new assessment and modeling of contribution” that EPA might need to perform. Comments of Air Stewardship Coalition 13–14 (June 21, 2022). The Court dresses up this
comment by characterizing it as a warning about what might happen “[i]f the FIP did not wind up applying to all 23 States” and responding to the concern that a “different set of States might mean that the ‘knee in the curve’ might shift” and change the cost-effective “emissions-control measures.” Ante, at 7. But those words are the Court’s, not the commenter’s.
The commenter’s actual objection was to EPA’s sequencing of its actions—proposing a FIP before it finalized its SIP disapprovals. The commenter titled this section “EPA Step Two Screening is Premised on the Premature Disapproval of 19 Upwind States[’] Good Neighbor SIPs.” Air Stewardship Comments 13 (boldface omitted). And the relevant sentence reads in full:
“The proposed FIP essentially prejudges the outcome of those pending SIP
actions and, in the event EPA takes a different action on those SIPs than contemplated in this proposal, it would be required to conduct a new assessment and modeling of contribution and subject those findings to public comment.” Id., at 14.
This sentence says nothing about what would be required if after EPA finalizes its SIP disapprovals and issues a final FIP, some States drop out of the plan. Nor does it suggest that the plan’s cost-effectiveness thresholds or emissions controls would change with a different number of States. Nor is it clear what the comment means by its bare reference to a “new assessment and modeling of contribution”: Would EPA be required to perform a new evaluation of which upwind States cause pollution in downwind States? A new analysis of how much pollution each source must eliminate? A new assessment of the plan’s impact on downwind States?
It is therefore difficult to see how this comment raised with “reasonable specificity” the objection that the removal of some States from the final plan would invalidate EPA’s
cost-effectiveness thresholds and chosen emissions-control measures.4 That is not how EPA understood it. EPA characterized this comment as arguing that “by taking action before considering comments on the proposed disapprovals, the EPA is presupposing the outcome of its proposed rulemakings on the SIPs.” Response to Comments 147 (noting this comment’s ID number, 0518). And EPA explained that it “disagree[d]” with the argument that the “sequence” of its actions was “improper, unreasonable, or bad policy”; EPA had a statutory obligation to promulgate a FIP by the August 2024 NAAQS attainment deadline. Id., at 150. If a commenter had said with reasonable specificity what the Court says today—that “a different set of States might mean that the ‘knee in the curve’ might shift,” ante, at 7—EPA could have responded with more explanation of why its methodology did not depend on the number of covered States—as it has recently explained. But EPA cannot be penalized if it did not have reasonable notice of this objection.5
In sum,
B
Even if applicants clear
To begin, the rule and its supporting documents arguably make clear that EPA’s methodology for calculating cost-effectiveness thresholds and imposing emissions controls did not depend on the number of covered States. The rule applied EPA’s longstanding “4-step interstate transport framework” to create emissions limits that will prevent NOx sources in upwind States from significantly contributing to ozone pollution in downwind States. 88 Fed. Reg. 36659; see
ozone; (3) determines which NOx sources in the linked upwind States “significantly contribute” to downwind nonattainment or interference; and (4) implements emissions limits to stop those sources’ significant contributions. 88 Fed. Reg. 36659; see EME, 572 U. S., at 500–501 (describing similar approach used in earlier FIP). The first two steps determine which States the FIP must cover. The rubber meets the road at steps 3 and 4: How much do sources in those States “significantly contribute” to downwind pollution, and what must they do about it?
Here is how EPA explains that methodology. A source “significantly contributes” to downwind pollution if there are cost-effective measures it could implement to reduce its emissions: It must halt those emissions that can be eliminated at a cost “under the cost threshold set by the Agency” for sources in that industry. EME, 572 U. S., at 518 (upholding this approach). So the “‘amount’ of pollution” that sources must eliminate is “that amount . . . in excess of the emissions control strategies the EPA has deemed cost effective.” 88 Fed. Reg. 36676. EPA calculates for each type of source a “uniform level of NOx emissions control stringency” expressed as a “cost per ton of emissions reduction.” Id., at 36719. This cost-effectiveness threshold is based on the point “at which further emissions mitigation strategies become excessively costly on a per-ton basis while also delivering far fewer additional emissions reductions.” Id., at 36683 (describing this “‘knee in the curve’” analysis). The plan requires sources in each covered State to reduce their emissions accordingly.6
In fact, some commenters criticized EPA’s reliance on a “nationwide data set” to calculate emissions limits, arguing that EPA should “limit the dataset to . . . just the covered states”—an approach that would have made the cost-effectiveness thresholds depend on which States were covered. Id., at 36723. But EPA expressly defended its approach based on its “intention to identify a technology-specific representative emissions rate” and its interest in “the performance potential of a technology”—which were best served by the “largest dataset possible (i.e., nationwide).” Id., at 36723–36724 (emphasis added). EPA explained that it used the same approach it had successfully applied in previous rulemakings: It “derive[d] technology performance averages” based on nationwide data. Id., at 36724. Then it applied the relevant industry standard “on a uniform basis” to each emitter across the covered States. Id., at 36817.8
EPA’s analysis confirmed that its chosen emissions limits would not result in overcontrol if they were implemented in the States originally covered by the FIP. 88 Fed. Reg.
36741. Importantly, implementing the FIP “in fewer upwind states does not (and cannot possibly) result in overcontrol” given that “there was no overcontrol even when more states, making more emission reductions, were included.” Denial 22. So the fact that EPA used state-specific data in its overcontrol analysis does not mean that the FIP’s emissions limits depended on the number of States it covered. And the inclusion of fewer States in that analysis logically could not have affected the results.
Thus, EPA generally characterized the FIP’s emissions limits as dependent on nationwide data, not on any particular set of States.9 Confirming this interpretation,
Moreover, EPA justified the FIP’s severability: EPA “must address good neighbor obligations as expeditiously as practicable and by no later than the next applicable attainment date”; severability serves “important public health and environmental benefits” and ensures that stakeholders can “rely on this final rule in their planning.” Ibid. These
rationales align with EPA’s response to critics of its decision to propose a FIP before finalizing its SIP disapprovals: Quickly proposing a FIP—just like keeping the FIP in place even if some States drop out—“is a reasonable and prudent means of assuring that [EPA’s] statutory obligation to reduce air pollution affecting the health and welfare of people in downwind states is implemented without delay.” Response to Comments 151.
Given these justifications and the state-agnostic methodology apparent in the final rule, EPA’s “‘path may reasonably be discerned.’” State Farm, 463 U. S., at 43. The FIP’s cost thresholds and emissions limits did not depend in any significant way on the number of States included, so the drawbacks of severability were minimal. On the other hand, severability was necessary so that EPA could fulfill, to the greatest extent possible, its statutory obligation to eliminate the significant ozone contributions of upwind States and reduce harmful pollution in downwind States in time to meet the attainment deadlines. See Response to Comments 150 (noting the August 2024 ozone-NAAQS attainment deadline). If the FIP were not severable, EPA would have to go back to the drawing board for all States whenever a single State is removed—thwarting its mission for little reason.10
Finally, it is unlikely that EPA’s response to comments evinces a “fail[ure] to consider an important aspect of the problem.” State Farm, 463 U. S., at 43 (emphasis added).
An agency must respond to “‘relevant’ and ‘significant’ public comments,” and that requirement is not “particularly demanding”; the “agency need not respond at all to comments that are ‘purely speculative and do not disclose the factual or policy basis on which they rest.’” Public Citizen, Inc. v. FAA, 988 F. 2d 186, 197 (CADC 1993) (quoting Home Box Office, Inc. v. FCC, 567 F. 2d 9, 35, and n. 58 (CADC 1977); emphasis added); see
C
Applicants face one more impediment: the Clean Air Act’s stringent harmless-error rule. A court “reviewing alleged procedural errors . . . may invalidate [an EPA] rule only if
the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed if such errors had not been made.”
The alleged error here plausibly is subject to
If the Act’s harmless-error rule applies, applicants are unlikely to prevail. Given the apparent lack of connection between the number of States covered and the FIP’s methodology for determining cost thresholds and emissions limits, it is difficult to imagine a “substantial” likelihood that the rule would have been “significantly” different had EPA just responded more thoroughly. In fact, applicants seem to have conceded as much. See Tr. of Oral Arg. 6 (“[W]ith full candor to the Court, [the cost threshold] could be the same or even be more expensive”); id., at 9 (“I can’t tell you what that looks like, whether there is a difference in the obligations or not”). And EPA, the Court says, had “notice” of the alleged concern that the cost thresholds might change with different States. Ante, at 15. Yet EPA still chose to make the FIP severable because of its statutory obligation to reduce downwind pollution—an obligation it repeatedly
referenced. See, e.g., 88 Fed. Reg. 36693; Response to Comments 149–151. Would that same EPA have “significantly changed” the FIP had it just explained more thoroughly why the plan did not depend on the States covered?12 And on
* * *
With little to say in response to the FIP’s apparent state-agnostic methodology for setting emissions limits and the Clean Air Act’s stringent harmless-error rule, the Court resorts to raising forfeiture. Ante, at 17–19. But it is the Court that goes out of its way to develop a failure-to-explain
theory largely absent from applicants’ briefs. One can search diligently in the hundreds of pages of applicants’ opening briefs for the Court’s theory—that EPA failed to explain in its final rule why the FIP’s cost-effectiveness thresholds for imposing emissions limits do not shift with a different mix of States—and be left wondering where the Court found it. That theory appears not to have crystallized until oral argument, during which counsel for the state applicants struggled to locate it in the States’ brief. Tr. of Oral Arg. 11–12. Consider just one illustrative example. Given the importance to the Court’s theory of how the “knee in the curve” might change with different States, see ante, at 6, 7, and n. 4, 12, one might expect to find some mention of that idea in applicants’ briefs. One would be wrong.
Given that applicants’ theory has evolved throughout the course of this litigation, we can hardly fault EPA for failing to raise every potentially meritorious defense in its response brief. That is particularly true given the compressed briefing schedule in this litigation’s emergency posture: The Court gave EPA less than two weeks to respond to multiple applications raising a host of general and industry-specific technical challenges, filed less than a week earlier. Even still, EPA raised
It remains applicants’ burden to show that the FIP’s alleged dependence on the covered States likely was an “important” problem that EPA “entirely failed to consider.” State Farm, 463 U. S., at 43. And that is on top of their burden to overcome
Finally, I would exercise our discretion to consider
III
Given the emergency posture of this litigation, my views on the merits of the failure-to-explain objection and the application of the Clean Air Act’s procedural bar and harmless-error rule are tentative. But even a tentative adverse conclusion can undermine applicants’ likelihood of success. And applicants, to prevail, must run the table; they face the daunting task of surmounting all of these significant obstacles. They are unlikely to succeed.
The Court, seizing on a barely briefed failure-to-explain theory, grants relief anyway. It enjoins the Good Neighbor Plan’s enforcement against any state or industry applicant pending review in the D. C. Circuit and any petition for cer-
tiorari. Ante, at 19. Given the number of companies included and the timelines for review, the Court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years—even though the temporarily stayed SIP disapprovals may all be upheld and the FIP may yet cover all the original States. The Court justifies this decision based on an alleged procedural error that likely had no impact on the plan. So its theory would require EPA only to confirm what we already know: EPA would have promulgated the same plan even if fewer States were covered. Rather than require this years-long exercise in futility, the equities counsel restraint.
Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. See Does 1–3, 595 U. S., at ___ (opinion of BARRETT, J.). Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions. I respectfully dissent.