Cleophus Sharp grew up in Houston in the Black neighborhood of Pleasantville in the 1950s. Neighbors knew one another, and Sharp remembers a closely knit community. But his childhood was marked by something most children won’t relate to: suffocating, toxic air that was inescapable.
On some days, you could actually see the smog in the sky, a blanket of gray haze also called ground-level ozone, the pollutant that results from the mixing of chemicals like nitrogen oxides and volatile organic compounds. You could feel it too through itchy eyes, shortness of breath, and long-term, persistent respiratory illness. Over time, a highway cutting through the neighborhood, near-constant trucking of chemicals, and encroachment of factories into the area reduced the vibrant community into a set of statistics.
“The industries along there have polluted the air so badly, growing up a number of us children contracted severe asthma,” Sharp said. “They told me it was hereditary, but nobody [in my family] had asthma but me.”
Growing up in Pleasantville, the air was up for discussion. Sharp remembers vividly when, as a child, he and his friends went outside and found birds lying on the ground, dead with no visible injuries. Sharp hypothesizes that it was the air quality, though he can’t know for sure.
In 2019 residents of Pleasantville installed the first air monitors to track pollution from the myriad surrounding sources. Sharp sits on the board of Achieving Community Tasks Successfully (ACTS), the local advocacy organization that led the effort to install the monitors. Until that point, residents knew what the likely sources of asthma, respiratory illnesses, and cancers were, but they lacked the empirical data to prove it. Sharp hopes that with data, ACTS will be able to advocate for government policies, corporate accountability, and community support as redress for the toxic air.
After years of preparation, in 2023, the Environmental Protection Agency (EPA) introduced the Good Neighbor Plan to curb emissions in Texas and 22 other states. It appeared the federal government had heeded the call and followed Pleasantville’s lead. The EPA gave corporations and states until 2026 to install or initiate pollution controls. With the rule in place, the environmental agency predicted that cleaner air would mean at least 1,300 fewer premature deaths while preventing 110,000 asthma attacks and 2,300 hospital and emergency room visits per year.
The rule would have brought states into compliance with federal air quality standards set by the Clean Air Act to ensure that states downwind of polluters could enjoy breathable air. But the effort didn’t last long. The Good Neighbor Plan was challenged by industries and states soon after it was implemented.
One of those challenges made it to the Supreme Court. Ohio v. EPA, brought by regulated industries, Ohio, and other states, is a lawsuit filed against the EPA for what the challengers say is an overreaching and burdensome rule that they claim would cost the natural gas industry alone nearly $1 billion to comply with. (Though, as the Center for American Progress reported, it’s worth noting that in 2022, the U.S. oil and gas industry had $332 billion in revenue.)
The environmental implications have advocates worried, but the procedural precarities of the lawsuit are what concern legal experts. While the justices will decide if the EPA plan can continue, lawsuits brought by industry continue in the lower courts—creating an unusual situation in which the Supreme Court is reviewing a case before a circuit court has rendered a decision. An added layer of complexity is that the EPA’s disapproval of state implementation plans to curb pollution is what allowed the agency to impose the Good Neighbor Plan in the first place. However, 12 states successfully challenged the EPA’s disapproval of their implementation plans and are no longer included in the Good Neighbor Plan while litigation plays out. Though it’s highly unusual for the court to consider an issue before it’s gone through the proper judicial channels, state and industry arguments hinge on the ongoing lower court litigation. In other words: for the plan to be lawful, it must apply to everyone.
The case will have far-reaching consequences, predicts Cary Coglianese, law professor and director of the Penn Program on Regulation at the University of Pennsylvania Carey School of Law. “If the court does decide in favor of the state of Ohio and other states that are seeking to block the Good Neighbor Plan, it casts a shadow over how the court will view other EPA regulations going forward.”
Coglianese also predicts that any future EPA program that tries to address rapidly intensifying consequences of climate change will be closely scrutinized by the justices, many of whom are “skeptical” about environmental regulation. “That will limit the ability of EPA to deal with climate change in the absence of additional congressional legislation,” Coglianese said.
The consequences will bear policy implications and signal to industry just how far they can push their states to go to bat for them, but for Sharp, the question is simple: “When did it become too expensive to save lives?”
When states don’t want to be a good neighbor
In oral arguments presented to the Supreme Court in late February, the air was also up for discussion. But these weren’t the conversations Sharp was accustomed to having with other Pleasantville residents about obtaining public information about air toxins or how to keep their children safe on hot days with poor air quality. Rather, lawyers for the plaintiffs asserted their clients needed the justices to grant immediate relief from the Good Neighbor Plan. While residents are forced to breathe in toxic chemicals emitted by faraway industries, they were the real victims of a shortsighted government program—or so they argued.
According to the federal government, the Good Neighbor Plan is not only legally sound, but an obligation of the EPA under the Clean Air Act that requires the agency to implement rules for any state putting people and the environment at risk by not meeting federal air quality standards. The statutes also say these rules must be based on science.
These agency goals were made with business in mind. Economic profitability is the beating heart of American democracy, and the EPA’s goal isn’t to put anyone out of business.
There’s always a balance that the agency must strike between advocating for public health while ensuring that businesses can operate, said Scott Throwe, a former EPA official and vice president of the consulting firm Throwe Environmental.
“One of their missions is to ensure that any regulation is not overly burdensome, and they look at every single aspect of any given regulation to monitor and to measure the burden, down to the dollar and cents,” Throwe said.
Throwe worked extensively on the Clean Air Act amendments that came out in 1990, which were a turning point in that they required polluters to install monitoring technology and report results. Throwe says the EPA is still trying to implement the full breadth of those amendments.
In fact, a 2015 revision of the National Ambient Air Quality Standards was supposed to help with that lag, said Zachary Fabish, a senior attorney with the Sierra Club, one of the many environmental organizations supporting the federal agency in Ohio v. EPA. Under the updated 2015 standard, 23 states were found not in compliance.
Under the Clean Air Act, the EPA has the power not just to set air quality standards, but to make sure that states follow them. The agency issued warnings to the states asking them to abide by the new rule and turn those plans over for review. Only two out of the 23 states created plans that the EPA could approve, leaving the rest to fall under federal oversight until they proved they could track and reduce emissions on their own. This federal oversight was the Good Neighbor Plan.
The logic went like this: Wind is an important part of ecosystem processes, especially for plant life. However, wind carries pollution far from its sources. Residents in states downwind of pollution, like those living in Pennsylvania and Indiana, breathe in toxic air transported from Ohio and Illinois. Because Pennsylvania can’t regulate Ohio, the federal government stepped in to demand that upwind states regulate their own industries so that others wouldn’t be saddled with the pollution. The increased emissions of nitrogen oxides and volatile organic compounds were causing air monitors in some states to register above the legal limit because of what other states were doing.
This whole situation strikes Fabish as odd. There’s little to no difference between the Good Neighbor Plan and previous EPA rules across multiple states that were out of compliance with regulations. According to the Congressional Research Service, a nonpartisan policy research institute, the federal environmental agency has issued similar Good Neighbor requirements with each subsequent ozone standard since the 1990s. This included the 2011 Cross-State Air Pollution Plan (CSAPR), which, in 2014, the Supreme Court found lawful.
“Ultimately, there’s something very, I would say, objectionable or unsavory about state governments going to bat for their ability to continue polluting their neighbors,” Fabish said. “There is an enormous unfair economic advantage that polluters get when they don’t have to pay the cost of their pollution.”
But someone is paying the cost. By some measures, about 92.8% of the country’s residents are exposed to a baseline level of unhealthy air, with more than 30% breathing in hazardous levels of ground-level ozone. The current ozone standard of 70 parts per billion (ppb) is about 15 ppb above the amount recommended by the EPA’s Clean Air Scientific Advisory Committee. In places like Houston, monitors have recorded pollution levels as high as 85 ppb. The health impacts are stark: breathing in particulate matter pollution—including the chemicals that constitute ozone—has the same impact on life expectancy as smoking.
And some pay the cost more than others. Black and Asian people are disproportionately likely to live in places with toxic air, and more than two-thirds of those living within 3 miles of facilities that emit harmful chemicals like ozone precursors are people of color. Neighborhoods that are overburdened with polluting facilities are also likely to be low income. Even if someone wanted to move to a neighborhood with cleaner air, the return on selling a house inundated by pollution is unlikely to cover the cost of a home elsewhere. Clean air literally has a price. Many just can’t afford it.
The health impacts have an enumerable cost, too. The EPA estimates that the Good Neighbor Plan, when applied to fewer than half of the original states intended in the first three years, would save between $719 million and $1.6 billion in health benefits.
“When states argue that it’s too costly, they’re not talking about the medical costs, they’re not talking about the public health costs,” said Jennifer Hadayia, the executive director of Air Alliance Houston. Rather, she said, industries are referring to the cost of their bottom line, which has seen record growth in recent years.
Pollution by design
Kimmie Gordon, the founder and director of Brown Faces Green Spaces, an environmental justice organization in Gary, Indiana, said that the adverse amount of pollution faced by Black communities in particular is due to racist housing and zoning laws, such as the 1930s-era practice of redlining. This legal segregation became a way for city planners and zoning boards to declare some areas as undesirable for white families but the ideal place for toxic factories and facilities. In Houston, white-only zoning boards chose majority-Black neighborhoods outside the city to place landfills and incinerators. Neighborhoods around Houston comprise the third-largest hot spot of cancer-causing air in the country.
According to the director of Brown Faces Green Spaces, it’s not a mistake that industrial facilities cropped up near Black communities across the country. “It stems from policies that existed way before pollution became a factor,” Gordon said.
Even with growing awareness that particulate matter and ozone precursor pollution lead to respiratory illness and cancer, advocates are worried that state environmental agencies are more likely to give corporations a pass rather than hold them accountable. That’s especially concerning, they say, given that one of the main arguments in Ohio v. EPA is that the federal government is overstepping and doing the job of state agencies. Yet federal law already gives much of its rulemaking and enforcement power to state agencies under the framework of “cooperative federalism.” It’s why air quality regulations differ widely between states like California and Texas.
“In Texas, we have a culture that prioritizes the polluters over the people, and that culture manifests in our regulatory environment,” Hadayia said.
Residents are also paying the cost of that regulatory environment. A March 2024 Environmental Integrity Project report analyzed the public cost of the subsidies offered since 2012 as incentives to petrochemical and fossil fuel plants to build in specific states. What they found was that public money used to attract corporations further entrenches pollution and diminishes public health, all under the guise of pro-business economic prosperity.
The annual public money offered to private corporations amounts to nearly twice that of the combined state environmental agency budgets in Texas and Louisiana, where most of the petrochemical facilities in the U.S. are located. The report also found that this infusion of $9 billion of public money over a decade supported at least two-thirds of plastics plants that were constructed or expanded.
In multiple states, public school districts and city governments strike deals that end up costing students hundreds of millions of dollars in would-be school funding. And while corporations boast that they’ll be “good neighbors” to the community, toxic emissions from these plants are nearly guaranteed. It’s not a matter of if, but how much.
The business-friendly regulatory environment took shape as environmental agencies at both the state and federal levels decreased in personnel and budget—meaning fewer resources to inspect and address water and air quality violations.
In the past decade, the Texas state environmental agency cut funding for pollution control programs by 35% and cut its staff by 296 positions, all while shepherding in one of the largest growths in the oil and gas industry in the country. Rarely does the state of Texas reject an air pollution control permit or levy a fine for unlawful emissions. Even when state regulators attempt to punish a facility, “polluters see these fines as part of the cost of doing business,” as ProPublica reported in 2021. If it happens, a fine goes to the Department of the Treasury and into the U.S. general fund and rarely, if ever, back into the community.
The deregulation of federal and state environmental agencies and the funding of facilities to entrench in largely low-income and majority-Black neighborhoods are just one part of the struggle that Pleasantville and other communities have to navigate.
The EPA monitors pollutants and regulates emissions under a range of pollution reduction strategies, though typically under the Clean Air Act, pollutants are regulated individually. Historically, cumulative pollution across a region has not received as much attention or scrutiny as discrete pollutants and sources, said Chitra Kumar, managing director of the climate and energy program at the Union of Concerned Scientists.
Kumar worked in the Environmental Protection Agency for nearly 20 years, helping to draft an earlier plan similar to the Good Neighbor Plan so that industries would meet Clean Air Act requirements for nitrogen oxides emissions across state lines. But she realized that the tools available to the EPA, even when implemented with good intentions, would still leave some communities overburdened with pollution.
She said the EPA needs to enforce stronger standards and acknowledges that, in many ways, what’s needed is a well-designed legislative fix to protect environmentally overburdened communities.
No matter what decision comes down from the court as its session comes to an end in June, Gordon, of the Indiana community organization, wants to see more action from lawmakers and the Biden administration. “It’s time,” she said. “The federal government needs to step up and be accountable.”
