Womble Bond Dickinson Partner Ana Maria Gutiérrez, assisted by Associate Michael Miller, successfully secured a stay pending appeal of the Environmental Protection Agency’s (EPA) cross-state ozone reduction plan before the U.S. Supreme Court. Gutiérrez served as co-lead together with Cate Stetson of Hogan Lovells on behalf of a major natural gas pipeline company.

In a 5-4 decision, issued on June 27, the Supreme Court stayed EPA’s plan, deciding that while the “harms and equities [are] very weighty on both sides,” the applicants for a stay, which included several states and a diverse array of industries, have a strong likelihood of succeeding in their claims that EPA’s rule is arbitrary and capricious.  Justice Neil Gorsuch wrote the majority opinion for the Court.

The contested EPA plan aimed to replace over 20 individual state plans for controlling ozone pollution with a single federal strategy covering 23 states. This approach raised numerous concerns among commenters, particularly regarding which states should be included in the plan and the feasibility of the federal plan if certain states were excluded. The Court concluded that those concerns were not speculative when the underlying state plan denials are called into question. EPA must have a valid state plan denial before it can issue a federal plan.  Justice Gorsuch explained that EPA developed the federal plan “by determining what measures in upwind States would maximize cost-effective ozone-level improvements in the States downwind of them.” With fewer than 23-states now subject to the federal plan, the problem was that “EPA did not address whether and why the same emissions-control measures it mandated would continue to . . . maximiz[e] cost-effective air-quality improvements.”  

While litigation continues in the U.S. Court of Appeals for the D.C. Circuit, the stay halts the implementation of the single, uniform federal plan, which would have resulted in sizable costs for the covered states and the entities operating within them.

The team of counsel on behalf of the natural gas pipeline industry also included Eric D. McArthur of Sidley Austin LLP, Brittany M. Pemberton of Bracewell LLP, and Laura K. McAfee of Beveridge & Diamond PC.

Other industry petitioners were represented by John D. Lazzaretti of Squire Sanders (US) LLP for the Steel petitioners; Mithun Mansinghani and Michael B. Schon of Lehotsky Keller Cohn LLP for the National Mining Association; Jonathan Y. Ellis, Allison D. Wood, and Makram B. Jaber of McGuireWoods LLP for 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 for the American Forest & Paper Association and Midwest Ozone Group.

Click here to read the full opinion.