Hogan Lovells partner Cate Stetson leads successful Supreme Court challenge to EPA's cross-state pollution plan

On June 27, in a 5-4 decision, the Court stayed the EPA’s plan, concluding that the challengers, which include several states and a broad cross-section of industries, are likely to succeed on their claims that the EPA’s rulemaking process violated the law.

The EPA’s plan at issue rejected more than 20 individual state plans for controlling ozone pollution, and sought instead to create a uniform federal plan for 23 states. Commenters warned about significant pitfalls to this approach, including questions concerning which states should be covered by the plan, and whether the 23-state federal plan could be supported if some states were removed from the plan’s reach.

Writing for the majority, Justice Neil Gorsuch explained that “EPA during the notice and comment period … offered no reasoned response” to important issues raised by the challengers. "As a result, the applicants are likely to prevail on their argument that EPA’s final rule was not “reasonably explained,” Justice Gorsuch wrote.

The stay prevents the federal plan—which would have imposed significant costs on the covered states and entities operating within those states—from being enforced while litigation over the plan continues in the U.S. Court of Appeals for the D.C. Circuit.

Stetson was part of a broad legal team representing pipeline companies and natural gas industry groups, including Ana M. Gutiérrez and Michael D. Miller of Womble Bond Dickinson LLP, Laura K. McAfee of Beveridge & Diamond PC, Brittany M. Pemberton of Bracewell LLP and Eric D. McArthur of Sidley Austin LLP.

Counsel for the other industry petitioners—on whose behalf Stetson also presented argument in the Supreme Court—were John D. Lazzaretti of Squire Sanders (US) LLP, representing the Steel petitioners; Mithun Mansinghani and Michael B. Schon of Lehotsky Keller Cohn LLP, representing the National Mining Association; Jonathan Y. Ellis, Allison D. Wood, and Makram B. Jaber of McGuireWoods LLP, representing America’s Power, Associated Electric Cooperative, Inc., Deseret Power Electric Cooperative, the National Rural Electric Cooperative Association, Ohio Valley Electric Corporation, the Portland Cement Association, and the Wabash Valley Power Alliance; and David M. Flannery, Kathy G. Beckett, Edward L. Kropp, and Keeleigh S. Utt of Steptoe & Johnson, PLLC, representing the American Forest & Paper Association and Midwest Ozone Group.

The Court’s decision is here.