Ohio v. Environmental Protection Agency

Neal D. Fortin*

Why It Made the List

In a year with major cases that rearranged the landscape of administrative law,[1] the Supreme Court’s emergency docket ruling in Ohio v. Environmental Protection Agency[2] may seem like a relatively inconsequential technical matter. The emergency docket decision temporarily paused a not fully implemented EPA Clean Air Act rule. The Court in Ohio concluded that EPA had provided an inadequate response to a single oblique reference within a comment on the proposed rule. This was held to violate the arbitrary and capricious standard of the Administrative Procedure Act.[3]

This case highlights the Court’s willingness to substitute its determinations in complex technical and scientific matters over those of agency scientists. The Court’s hard look at agency actions and its positioning itself as the frontline expert with the authority to decide complex scientific matters will likely impact FDA in coming years. Therefore, the Court’s ruling in Ohio v. EPA makes our list of the top (FDCA-related) cases of 2024 even though it does not directly involve FDA or the Federal Food, Drug, and Cosmetic Act.

Discussion

The Clean Air Act assigns responsibility to the states for developing plans to meet air quality goals, the State Implementation Plans (SIPs).[4] Because air currents carry pollution across state borders, states must design their plans with neighboring states in mind. Under the Act’s “Good Neighbor Provision,” each state plan 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.[5] If a SIP fails to satisfy the requirements of the Act, the EPA may step in and issue a Federal Implementation Plan (FIP).[6]

In 2015, a revised ozone air quality standard triggered the need for states to submit new SIPs. After subsequent review, EPA announced its intent to disapprove twenty-three SIPs for failure to meet the Good Neighbor Provision. During the public comment period for the SIP disapprovals, EPA proposed a single FIP to bind all twenty-three states. Some states challenged the EPA, and ultimately, stays were issued for twelve SIPs. EPA proceeded to issue its final FIP and announced that its plan was severable. If any state dropped out, the plan would continue to apply unchanged to the remaining states.

Then, several of the remaining states and industry groups challenged EPA’s decision as arbitrary and capricious, requesting a stay of enforcement of the FIP. The D.C. Circuit denied relief, and the plaintiffs appealed. The parties renewed their request for a stay to the Supreme Court.

In a 5–4 split decision, Justices Gorsuch, Roberts, Thomas, Alito, and Kavanaugh granted an emergency stay of the enforcement of the FIP until the legal challenges to the SIPs had been resolved by the United States Court of Appeals. The majority concluded that the challengers were likely to succeed on the merits of a claim that EPA had arbitrarily “ignored an important aspect of the problem,” specifically, what happens if many of the covered upwind states “fall out” of the planned FIP.[7] As recounted by Justice Gorsuch, one comment on the proposed FIP suggested that if some of the SIPs were disapproved on appeal, EPA might need to reassess the FIP based on a different set of states.

Because EPA’s FIP relied on the states’ implementation and several states were challenging EPA, the EPA “could not represent with certainty whether the cost-effectiveness analysis it performed collectively for 23 States would yield the same results and command the same emissions-control measures if conducted for, say, just one State.”[8] Therefore, the majority concluded that the final rule was not reasonably explained, and thus, the rule would likely meet the meaning of “arbitrary” or “capricious” within the Act.[9]

The dissent by Justice Amy Coney Barrett joined by Justices Sotomayor, Kagan, and Brown Jackson, offered a sharply different version of the facts as well as an alternative interpretation. The dissent found that EPA had reasonably explained that “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.”[10] In addition, in denials of petitions for reconsideration, EPA “thoroughly explained how its ‘methodology for defining’ each State’s emissions obligations is ‘independent of the number of states included in the Plan’” because it “relies on a determination regarding what emissions reductions each type of regulated source can cost-effectively achieve.”[11]

As the dissent noted, “the Court does not conclude that EPA’s actions were substantively unreasonable.”[12] The majority did not conclude that litigation ultimately would or should lead to a reduction in the number of states covered by FIP. There was no evidence that the FIP would become irrational or that it would affect the remaining states’ obligations if some states were not included in the FIP. There was no conclusion that the EPA’s cost-effectiveness analysis was incorrect or invalid. “[T]he 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.”[13]

EPA had argued that applicants must return to the EPA and file a motion asking it to reconsider its final rule before presenting their objection in court because the “grounds for [their] objection arose after the period for public comment.”[14] The Clean Air Act expressly precludes judicial review of objections that were not “raised with reasonable specificity during the period for public comment.”[15] The majority disagreed because nothing requires the applicants to return to the EPA to raise a concern EPA already had a chance to address in response to public comment.[16]

On the other hand, in the dissent’s narrative, “it is not clear that any commenter raised with ‘reasonable specificity’ the underlying substantive issue, that the exclusion of some States from the FIP would undermine EPA’s cost-effectiveness analyses and resulting emissions controls. The Court concludes otherwise only by putting in the commenters’ mouths words they did not say.”[17]

The record offers a single oblique comment that concerned the sequencing of approval of the FIP before the final resolution of the disputes over some of the SIPs because the EPA might take a different action on the SIPs than predicted in advance.[18] Nowhere does the comment raise the possibility that the cost-effectiveness thresholds or emissions controls would change with a different number of states in the FIP. Moreover, the EPA responded to this comment by explaining that the “sequence” of its actions was not “improper, unreasonable, or bad policy,” and EPA had a statutory obligation to promulgate a FIP by the statutory attainment deadline.[19]

When EPA issued the final FIP, it announced that its plan was severable. If any state dropped out, the plan would continue to apply unchanged to the remaining states. However, the majority found that the provision did not address concerns but sidestepped them.[20] In contrast, the dissent took the severance provision as evidence of the reasonableness of EPA in providing needed flexibility to ensure effective implementation by the statutory deadline and reliance by stakeholders.[21]

The dissent also objected that the Court improperly granted emergency relief “in a fact-intensive and highly technical case without fully engaging with both the relevant law and voluminous record.” They also found that EPA’s disapproval of the SIPs may have been proper, and, moreover, the applicants would be unlikely to succeed when the challenge was fully briefed and argued on the merits.[22]

EPA’s response to the comments numbered nearly 1,100 pages.[23] Notably, Justice Gorsuch bent over backwards to extrapolate from a single, vague sentence in a forty-page comment, buried amid a sea of 112,000 comment letters received by EPA, while holding EPA to a much higher standard of clarity.[24]

No comment explicitly mentioned the possibility of a change in the cost-effectiveness threshold, but Justice Gorsuch found it implied by the commenter’s general reference to potential new modeling. In the dissent’s view, the Court downplayed EPA’s statutory responsibility to ensure that states meet air-quality standards.[25]

Impact

The immediate effect of Ohio v. EPA was the emergency stay against clear air protection for millions of people against nitrogen oxide, which is a pollutant that can cause respiratory distress, reduce lung function, and trigger and cause asthma. The Ohio decision reinforces the Court’s belief that its understanding outclasses the government’s experts in answering complex questions of scientific fact and technological capacity. With no relevant training or expertise, the Court will substitute its determinations for those of scientists and experienced regulators.[26] Administrative agencies should ensure their scientific and technological explanations for proposed rules are explained in short, compelling narratives in addition to their complex, numerical and data-heavy explanations.

This case also provides a template for when conditions are right for pausing regulations with a mini trial before full judicial review. The Court intervened to produce a full ruling before the lower court concluded its fact-finding on the substantive issues. This reflects a trend with the Court using intermediate proceedings to decide on major policy questions without a fully developed factual and procedural record.[27]

Reframed As Procedural Error

Another striking aspect of this case, the Court signaled that there may be the opportunity to undermine agency actions by developing hypothetical counter narratives without the heavy lifting of compiling substantial data or evidence. Reframing a substantive burden into a procedural one, of course, significantly reduces the need to develop substantive evidence. However, this case takes it further. The challengers did not have to convince the judge of their objection in that jurisdiction, but rather only had to persuade the Court that some judge in some jurisdiction somewhere might find some portion of the rule invalid, and thus, alter the predicate procedural requirement. That is, if the agency failed to fully explain the consequences of alternate futures, where some parts of the rule were invalid, the whole rule may be invalidated. Using Ohio v. EPA as a model, if a comment suggests one or more provisions of a rule may be struck down by challenges, it may require the agency to discuss the implications, such as the impact on cost-benefit analyses, for possible subsets of the rule’s provisions. This creates a novel litigation strategy, “multiversal forum shopping.”[28]

APA Arbitrariness Review

This decision could be important when it comes to predicting the future of the Administrative Procedure Act (APA) arbitrariness review. In Ohio v. EPA, the Court took it for granted that failing to respond to a significant comment would make an agency decision arbitrary or capricious. However, nothing in the APA exactly says that agencies must respond to the comments they receive.[29]

Ohio v. EPA demonstrates an intensified hard look over federal agency action. It reaches deeply into managing the details of administrative decisions, flexing the Court’s power to override congressional will and presidential implementation.

It is worth noting that EPA had placed a severability provision in the final rule. The Court dismissed the provision as irrelevant. A takeaway is that severability provisions as statements in rules without more will not be effective. If Ohio v. EPA carries forward, this shifts away from traditional severability analysis, which makes an effort to do as little violence as possible to the work of a co-equal branch of the federal government.

Defensive Administrative Law

In the practical aspect of this case, the result means delay and confusion over the final clean air rule. On a broader scope, this will push agencies to be even more defensive in rulemaking. EPA’s response to the comments on this proposed rule numbered nearly 1,100 pages. Ohio v. EPA pushes agencies to make their responses even more voluminous and deal more with hypotheticals.

Flooding an agency during the comment period on proposed rules is nothing new. Industry representatives bomb agencies with thousands of pages of comments, sometimes containing unstructured technical information.[30] The decision in Ohio makes this approach potentially even more rewarding. Each comment is potentially a rake the agency might step on. “The more comments, the more rakes strewn across the lawn.”[31]

Scientists and technical experts might know that a comment is not pertinent. However, a judge who knows nothing about the technical subject matter might someday think otherwise.[32]

Agencies may strive to minimize the risk of “stepping on a rake” by responding ad nauseam to each and every aspect of every comment. A flyspeck review in hindsight seems far beyond the question of whether an agency has behaved arbitrarily and capriciously, but that is the demanding standard in Ohio v. EPA.

If you are in favor of efficient government, you won’t want the courts to be in the business of fly-specking lengthy notice-and-comment records. Cases like this will push agencies to be more defensive in rulemaking and thus sclerotic and slow in carrying out congressional and presidential will.[33]

Even if you dislike the administrative state, making it less efficient, and making it work less well, may cause collateral problems, such as failing to respond to your needs and making bad decisions.

 

*   Neal D. Fortin is a professor in the Department of Food Science and Human Nutrition at Michigan State University (MSU), an adjunct professor of law at the MSU College of Law, and Director of the MSU Institute for Food Laws & Regulations. He teaches the classes U.S. Food Law, International Food Law, Codex Alimentarius, and Regulatory Leadership in Food Law. Mr. Fortin is also an attorney concentrating in food law and author of Food Regulation: Law, Science, Policy, and Practice and Advanced Introduction to International Food Law.

[1]   See, e.g., Loper Bright Enters. v. Raimondo, 603 U.S. 400 (2024), Sec. & Exch. Comm’n v. Jarkesy, 603 U.S. 109 (2024), and Corner Post, Inc. v. Bd. of Governors of the Fed. Rsrv. Sys., 603 U.S. 799 (2024).

[2]   144 S. Ct. 2040 (2024).

[3]   U.S.C.A. § 706(2)(A).

[4]   42 U.S.C. § 7410(a)(1).

[5]   42 U.S.C. § 7410(a)(2)(D)(i)(I).

[6]   42 U.S.C. §§ 7410(k)(3), (c)(1).

[7]   Ohio, 144 S. Ct. at 2054.

[8]   Id.

[9]   42 U.S.C. § 7607(d)(9)(A).

[10] Ohio, 144 S. Ct. at 2059.

[11] Id. at 2060 (internal citation omitted).

[12] Id. at 2060.

[13] Id. at 2060 (internal citations omitted).

[14] 42 U.S.C. § 7607(d)(7)(B).

[15] 42 U.S.C. § 7607(d)(7)(B).

[16] Ohio, 144 S. Ct. at 2056.

[17] Id. at 2061 (citations omitted).

[18] Id. at 2062–63.

[19] Id. at 2063.

[20] Id. at 2055.

[21] Id. at 2064.

[22] Id. at 2058.

[23] Id. at 2067.

[24] Daniel Deacon, Ohio v. EPA and the Future of APA Arbitrariness Review, Notice & Comment, Yale J. on Regul. (June 27, 2024), https://www.yalejreg.com/nc/ohio-v-epa-and-the-future-of-apa-arbitrariness-review/.

[25] Ohio, 144 S. Ct. at 2058.

[26] They belied their ignorance by repeatedly mixing up nitrogen oxide, a noxious pollutant, with nitrous oxide, laughing gas. Duncan Hosie, Samuel Alito’s Recent Cosplay as a Scientific Expert is a Glimpse onto the Future of America Law, San Francisco Chron. (June 30, 2024), https://www.‌sfchronicle.‌‌com/‌opinion/openforum/article/supreme-court-conservative-law-alito-chevron-19546140.php.

[27] See Stephen Vladeck, The Shadow Docket: How the Supreme Court Uses Stealth Rulings to Amass Power and Undermine the Republic (2023, New York, NY: Basic Books).

[28] Jack Lienke, Every Court Everywhere All at Once: Ohio v. EPA and the Litigation Multiverse, 135 Yale L.J. Forum (forthcoming 2025), available at SSRN: https://ssrn.com/abstract=. If there are ten provisions, that is 2^10 = 1,024 thousand combinations. If there are twenty, it is over a million combinations (2^20 = 1,048,576).

[29] Deacon, supra note 24.

[30] Wendy Wagner, Administrative Law, Filter Failure, and Information Capture, 41 Env. L. Rep. 10732 (2011).

[31] Nicholas Bagley, The Big Winners of This Supreme Court Term, The Atlantic (June 29, 2024), https://www.‌theatlantic.com/ideas/archive/2024/06/big-winners-supreme-court-term/678845/.

[32] Id.

[33] Id.