EPA lost big at the Supreme Court this term. There’s more to come.

By Pamela King | 07/03/2024 01:53 PM EDT

The justices aren’t shying away from rebuking federal regulators for overstepping their authority.

The U.S. Supreme Court is seen.

The Supreme Court. Francis Chung/POLITICO

The Supreme Court is taking aim at EPA’s ability to stop pollution and curb climate change — even in cases that don’t directly involve the agency.

In one of the biggest cases this term, the justices struck down the Chevron doctrine, a powerful legal tool that for 40 years had helped federal regulators defend their rules in court. The high court also reached out through its emergency docket to halt EPA controls on smog-forming pollution that wafts across state lines.

The decisions built upon prior losses for EPA in major climate and water cases over the last two years, as well as other rulings this term that tamped down the authority of federal regulators to craft rules for the rest of the nation to follow.


“Taken together, these decisions all show the effort to restrain agency power,” said Peter Hsiao, a partner at the law firm King & Spalding.

But the Supreme Court isn’t operating in a vacuum, said Jeff Holmstead, a partner at the law and lobbying firm Bracewell.

“There’s no doubt the court has expressed skepticism about agency power and authority — or claims of authority,” said Holmstead, who led EPA’s air office under former President George W. Bush. “But I think part of the reason for that is in recent years, EPA has been much more aggressive than it has been in the past.”

There’s more in store for the agency and environmental regulators next term.

The Supreme Court has already added two significant environmental cases to its calendar, and conservative justices are signaling interest in revisiting the long-dormant nondelegation doctrine, which says Congress can’t hand off too much power to executive agencies.

“That is absolutely the next bridge that they’re going to encounter,” said Hsiao.

Here are the Supreme Court rulings and pending cases that could lead to seismic shifts in federal environmental policymaking.


Loper Bright Enterprises v. Raimondo

In one of its biggest rulings this term, the Supreme Court in a 6-3, ideologically divided ruling overturned the Chevron doctrine, which had said that judges should generally defer to agencies’ reasonable interpretation of ambiguities in statutes like the Clean Air Act.

While the cases that created and killed Chevron were environmental disputes, the doctrine’s demise has the potential to sideline other federal protections on issues like health care and artificial intelligence.

Loper Bright is already rippling through the lower benches, including in one Supreme Court order that required the U.S. Court of Appeals for the District of Columbia Circuit to revisit the victory it had handed renewable energy developers looking to sell more power to the market.

Ohio v. EPA

In a 5-4 decision that arrived at the court through its emergency docket, the justices halted an EPA “good neighbor” rule governing smog-forming pollution that crosses state borders.

The decision was a preliminary victory for Republican-led states and industry groups that will still need to slug it out in the lower courts over the merits of the EPA rule.

The ruling has also drawn criticism from opponents of the Supreme Court’s use of its emergency — or “shadow” — docket to address substantial regulatory questions that some parties say are not urgent enough to warrant immediate relief.

Corner Post v. Board of Governors of the Federal Reserve System

The Supreme Court opened the door to new lawsuits over old rules in a 6-3 decision that allowed a North Dakota truck stop and convenience store that opened in 2018 to sue over a 2011 card swipe fee regulation.

In their dissent, the liberal justices warned that the Corner Post ruling, when paired with the decision to overturn Chevron, could trigger a “tsunami of lawsuits” over federal rules.

Securities and Exchange Commission v. Jarkesy

Federal regulators will have a harder time bringing their own enforcement cases against polluters and pipeline builders after the Supreme Court ruled to limit the power of agencies’ in-house tribunals.

In a 6-3 ideologically divided ruling, the justices decided that a federal court — rather than an administrative law judge at the SEC — should oversee a fraud case against hedge fund manager George Jarkesy. The case is expected to reverberate through other agencies, like the Federal Energy Regulatory Commission.

Texas v. New Mexico and Colorado

The justices’ 5-4 rejection of a settlement between three states over how to account for water use in the Rio Grande River Basin may have given the federal government a bigger say in dealmaking over other Western waterways, such as the Colorado River.

The Supreme Court’s ruling on the Rio Grande settlement could reopen negotiations between the states, the Justice Department and state water districts.

Food and Drug Administration v. Alliance for Hippocratic Medicine

The Supreme Court unanimously upheld an FDA policy that expanded access to abortion pills — and did so without upending legal precedent that helps environmental groups access the courts.

The justices found that emergency room doctors did not have standing to bring their lawsuit and cited prior rulings to clarify that their decision did not preclude lawsuits from other types of organizations, such as challenges from conservation groups when air and water is polluted.

DeVillier v. Texas

In a case that could have big impact for power-sector litigation, the Supreme Court unanimously allowed Texas landowners to sue the Lone Star State for compensation after Hurricane Harvey and Tropical Storm Imelda damaged their property in 2017 and 2019, respectively.

Richard Devillier and other landowners had argued that a state-backed highway elevation and expansion project had caused the flooding on their property. The ruling in their favor could open the door to more lawsuits from property owners against utilities that exceed their easements or whose power lines spark wildfires.

Sheetz v. County of El Dorado

The Supreme Court handed another unanimous win to landowners in deciding that a California county had unlawfully charged a homeowner a traffic impact fee of more than $20,000 as a condition of building a prefabricated home on his land.

Landowner George Sheetz’s narrow win in the case appeared to avoid broader implications for municipal water regulators, for example, who had worried the case would hamper utilities’ ability to charge fees to offset efficiency upgrades.

Pending petitions

Climate change could be a major focus for the justices next term, if they choose to add one of the following cases to their calendar.

The justices don’t agree to hear every petition that comes their way. Four justices must vote to take up a case, and only about 1 percent of petitions make it to the docket.

Alabama v. California

Nineteen conservative states are teeing up an unusual climate battle that invokes the Supreme Court’s exclusive oversight of litigation between states.

Republican state attorneys general contend that lawsuits from government officials in California and other states that seek to hold the oil industry financially accountable for climate change are a threat to economies that rely on energy production.

While only the Supreme Court can handle legal battles between states, the justices do not have to take up the case. The justices must first grant the states’ motion for leave to file a bill of complaint.

Sunoco v. Honolulu

The Supreme Court has a second shot at taking down climate liability lawsuits in the oil industry’s bid to overturn a Hawaii Supreme Court ruling that moved Honolulu’s case a step closer to trial.

Honolulu’s lawsuit against Sunoco and other oil producers is one of more than two dozen of its kind across the United States. Industry lawyers have tied up the cases in a procedural dispute, arguing that the cases belong not in state court but before federal judges, where they may be more likely to fail.

The justices have asked for the Biden administration’s views on the matter.

Diamond Alternative Energy v. EPA

Oil and biofuel industry lawyers have asked the Supreme Court to remove California’s long-standing authority to set stricter tailpipe emissions rules than the federal government.

The Golden State had held its waiver for about 50 years before the Trump administration withdrew it. When President Joe Biden reinstated it in 2022, conservative interests sued and lost in the D.C. Circuit.

Seventeen other states and the District of Columbia have adopted California’s stricter emissions standards for cars and trucks.

Nuclear Regulatory Commission v. Texas

The Biden administration’s fight for a temporary nuclear waste storage in Texas could reopen debate on the major questions doctrine.

The Supreme Court used the legal theory — which says Congress must explicitly authorize agencies to regulate on significant issues like climate change — to invalidate a power plant emissions rule in West Virginia v. EPA in 2022.

A lower court applied the doctrine in the NRC case to find that the handling of nuclear waste is a major question that “has been hotly politically contested for over half a century.” The Biden administration asked the justices to overturn that ruling and restart construction of a temporary waste repository.

Next term

The Supreme Court already has two big environmental cases on the calendar for its next term, which begins in October.

San Francisco v. EPA

Odd bedfellows have aligned in the Supreme Court’s latest water case, in which San Francisco is backed by the fossil fuel industry in its permitting battle against EPA.

San Francisco has asked the justices to rule that federal water regulators need to be more specific about how much pollution wastewater treatment facilities can spew into the Pacific Ocean.

Seven County Infrastructure Coalition v. Eagle County

Following rulings that curbed EPA’s authority under the Clean Air Act and the Clean Water Act, court watchers expect that the justices could be poised to walk back agency powers under another bedrock environmental law — the National Environmental Policy Act.

In a case that centers on NEPA review of an oil-by-rail project in Utah, the justices could soon set new limits on how federal agencies consider the climate and environmental risks of major projects like highways and pipelines.

Holmstead said that while the case could speed up NEPA reviews for fossil fuel projects, it could also hasten the process for renewable energy development. Like other environmental cases in recent years, the NEPA battle could be an avenue for the Supreme Court to tell Congress it needs to act, instead of leaving decision-making to the agencies, he said.

“That would mean the environmental community wouldn’t get everything it wants,” he said, “but it means they would get durable laws.”

Reporters Niina H. Farah, Lesley Clark, Jennifer Yachnin and Sean Reilly contributed.