On September 25, 2023, the U.S. Court of Appeals for the District of Columbia denied a motion in Utah v. EPA to stay the EPA Good Neighbor Plan, which regulates air pollution crossing state lines.

The single-page ruling states the motion was denied because the plaintiffs “have not satisfied the stringent requirements for a stay pending court review.” The ruling also reports that Judge Justin Walker, a judge in the three-judge panel, would have granted the motion.

The EPA is regulating Utah under the rule because it says nitrogen oxide (NOx) from coal-fired plants in Utah blows east and could contribute to high ozone levels in Colorado, where the Denver metro area has consistently failed to meet federal ozone standards.

Utah challenged the Good Neighbor Plan, also known as the Ozone Transfer Rule, because state leaders said it “harms Utahns and threatens our ability to provide affordable and reliable baseload energy to our state,” according to The Salt Lake Tribune.

In addition to the costs of emissions controls, Utah regulators “argue the pollutants, which can cause severe respiratory issues, are as likely to be drifting in from as near as California or blowing in from as far away as China, leaving them helpless to do anything about it,” The Well News says.

Utah legislators allocated $2 million to fund the state’s legal challenge to the rule.  Utah officials say the necessary pollution-control equipment for compliance is too expensive and will harm the state’s economy and residents.

“Environmental groups have criticized the state’s decision to challenge the rule, arguing that coal plant operators have had plenty of time to address their pollution,” continues The Salt Lake Tribune.

“Utah has four coal-fired power plants that could potentially be affected by the rule,” The Salt Lake Tribune adds. “In addition to the two Rocky Mountain plants, the Intermountain Power Project operates the state’s largest coal-fired power plant near Delta, but IPP officials have already announced their plans to close the coal units and move to natural gas and hydrogen. The other plant is the Bonanza power plant near Vernal, which serves rural electrical cooperatives in Utah and adjoining states. … Utah Sen. Nate Blouin, a Democrat who has worked in the renewable energy industry, opposed the $2 million allocation for the lawsuit. Blouin said in an interview that he is sympathetic to the argument that clean energy takes time. ‘We can’t just retire our baseload resources overnight.’”

Good Neighbor Plan

Under the Biden administration, the Good Neighbor Plan was expanded to include 21 additional states required to limit NOx emissions within their borders that cause excess pollution problems in other states. Utah was one of those states.

To avoid being placed under a federal implementation plan (FIP) for compliance, states can submit for EPA approval their own state implementation plans (SIPs) that outline how the states plan to meet the EPA’s health-based air quality standard for ground-level ozone (or smog)—known as the 2015 ozone National Ambient Air Quality Standards (NAAQS).

On May 24, 2022, the EPA published proposed SIP disapproval notices for air quality plans submitted by California, Nevada, Utah, and Wyoming. In each case, the Agency cited the state failed to adequately address compliance with the 2015 8-hour ozone NAAQS.

Utah isn’t the only entity to turn to litigation to fight compliance with the rule.

“The DC Circuit in March dismissed a utility-backed lawsuit against the rule, but in May, another court, the Eighth Circuit Court of Appeals, granted a request for a stay by Missouri Attorney General Andrew Bailey (R)," reports The Hill. “Another court, the 5th Circuit in New Orleans, stayed the EPA’s rejection of Texas and Louisiana’s plans.”

Industries beyond the power sector subject to these proposed emissions standards include:

• Reciprocating internal combustion engines in pipeline transportation of natural gas;
• Kilns in cement and cement product manufacturing;
• Boilers and furnaces in iron and steel mills and ferroalloy manufacturing;
• Furnaces in glass and glass product manufacturing; and
• High-emitting, large boilers in basic chemical manufacturing and petroleum and coal products manufacturing and pulp, paper, and paperboard mills.

EPA response to legal rulings

According to the Agency website, in response to judicial orders, the EPA has amended the Good Neighbor Plan on an interim basis to implement the orders and stay the rule’s requirements to mitigate interstate air pollution with respect to the 2015 ozone NAAQS for facilities in Arkansas, Kentucky, Louisiana, Mississippi, Missouri, and Texas.

Since then, courts have granted motions for partial stays of the SIP disapproval action for several additional states. To comply with the additional stay orders, the EPA is further amending the Good Neighbor Plan on an interim basis to stay the rule’s requirements to mitigate interstate air pollution with respect to the 2015 ozone NAAQS for facilities in Alabama, Minnesota, Nevada, Oklahoma, Utah, and West Virginia. Sources in these states aren’t currently required to comply with the Good Neighbor Plan.

As of September 21, 2023, the Good Neighbor Plan's “Group 3” ozone-season NOx control program for power plants is being implemented in the following states: Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin. Pursuant to court orders staying the Agency’s SIP disapproval action as to the following states, the EPA isn’t currently implementing the Good Neighbor Plan “Group 3” ozone-season NOx control program for power plants in the following states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia.