Capito, McMorris Rodgers lead colleagues in filing brief against EPA’s air rule

U.S. Sen. Shelley Moore Capito (R-WV) and U.S. Rep. Cathy McMorris Rodgers (R-WA) on Monday led 44 of their colleagues in filing a bicameral amicus curiae brief opposing the Environmental Protection Agency’s (EPA’s) so-called “Good Neighbor” rule, a plan that aims to cut smog-forming pollution that drifts across state lines from power plants and industrial facilities in 23 states.

The U.S. Supreme Court is considering a request to temporarily block the Good Neighbor rule, a 2015 plan by the EPA that ordered 23 states to reduce their downwind ozone pollution. The agency has rejected the plans of 21 states that proposed no changes to their emissions, and per the Clean Air Act (CAA), the EPA published federal plans for the states with insufficient plans, and for two that did not submit plans. 

The federal plans direct states to optimize the use of existing controls in power plants, install commonly used controls in power plants and other smaller sources of ozone, and use an emissions trading system, according to a case summary written by the National Conference of State Legislatures (NCSL).

Various appeals courts have stayed the EPA’s rejection of 12 state plans; however, the Court of Appeals for the District of Columbia Circuit did not. The court’s ruling impacted Ohio, West Virginia, and Indiana, and those states appealed to the Supreme Court. The justices will decide only whether the states must comply with the EPA’s plan until the resolution of the lower court cases, NCSL says.

According to the brief filed on Monday in the D.C. appeals court by Sen. Capito, Rep. McMorris Rodgers, and their congressional colleagues, the EPA’s Good Neighbor air rule targets American power production and burdens states with misguided air regulations.

“Acting well beyond its delegated powers under the CAA, EPA’s rule proposes to remake the energy sector in the affected states toward the agency’s preferred ends,” according to their brief. “The rule is part of the broader joint EPA-White House Strategy that oversteps the agency’s authority by concurrently developing regulations under three separate environmental statutes. It does so not to meet any of the statutes’ individual ends but to transform the power sector.”

The EPA’s group of regulations – including the Good Neighbor rule – are designed to “hurriedly rid the U.S. power sector of fossil fuels by sharply increasing the operating costs for fossil fuel-fired power plant operators, forcing the plants’ premature retirement,” the brief reads in part.

Specifically, the lawmakers say that the Good Neighbor rule imposes overreaching emissions requirements on power plants, natural gas pipeline assets, and industrial plants like steel, cement, and paper production facilities in 23 states. And despite active Supreme Court proceedings that could halt nationwide implementation of the rule, the EPA has remained committed to it and recently proposed adding five more states to the program, according to the lawmakers.

Sen. Capito and Rep. McMorris Rodgers have actively denounced the rule since 2022 through formal legislative challenges, at hearings, in op-eds, and in letters.

Among the lawmakers who joined them in filing the amicus curiae brief are U.S. Sens. Roger Wicker (R-MS), Marsha Blackburn (R-TN), Steve Daines (R-MT), Deb Fischer (R-NE), John Hoeven (R-ND), and John Thune (R-SD), and U.S. Reps. Kelly Armstrong (R-ND), Troy Balderson (R-OH), Larry Bucshon (R-IN), Michael Burgess (R-TX), Buddy Carter (R-GA), John Curtis (R-UT), John Joyce (R-PA), Bob Latta (R-OH), Jay Obernolte (R-CA), and August Pfluger (R-TX).