B&D litigators led by Principal Laura McAfee (Baltimore) were part of a state/industry coalition that won a rare Supreme Court stay of a major U.S. Environmental Protection Agency (EPA) rule. Ohio. v. Environmental Protection Agency, 2024 WL 3187768 (June 27, 2024). The 5-4 decision blocked EPA implementation pending lower court review of the Good Neighbor Provision of the Clean Air Act, which requires air pollution control measures in states whose pollution affects other states downwind of them, particularly ground-level ozone. 

The Court agreed with the applicants for the stay that EPA’s decision to apply the Good Neighbor Provision through a federal scheme that replaced state-level air pollution control plans was arbitrary and capricious, and the applicants were thus likely to succeed on the merits of their challenge to the provision. Justice Gorsuch, writing for the majority, credited the applicants’ arguments that requiring them to comply with the plan while litigation continues could cost them “hundreds of millions, if not billions of dollars.”

The case now returns to the United States Court of Appeals for the D.C. Circuit. The Supreme Court’s grant of the stay has received nationwide media coverage, including articles in SCOTUSblog and Law360 (subscription required).

B&D’s litigators represent clients in administrative rulemakings and appellate matters in numerous state and federal courts, including the D.C. Circuit and U.S. Supreme Court. Later this year, the U.S. Supreme Court will hear argument in San Francisco v. Environmental Protection Agency, in which B&D represents San Francisco in seeking review of a Ninth Circuit decision holding that the Clean Water Act allows the imposition of generic prohibitions against violating water quality standards in wastewater permits.