How the Supreme Court ‘shadow docket’ shaped climate doctrine

By Pamela King | 07/29/2022 01:39 PM EDT

Chief Justice John Roberts’ approach to the “major questions” doctrine in West Virginia v. EPA signals the Supreme Court’s new willingness to treat expedited orders as precedent.

Supreme Court with long shadow illustration.

Environmental lawyers say the Supreme Court's landmark EPA climate ruling demonstrates the growing influence of the "shadow docket." Claudine Hellmuth/E&E News (illustration); Francis Chung/E&E News (Supreme Court)

In defining the new contours of an old legal doctrine, the Supreme Court in its landmark climate ruling last month gave new weight to cases it decided on an expedited basis through its emergency — or “shadow” — docket.

The six-justice conservative majority in West Virginia v. EPA, led by Chief Justice John Roberts, found that the federal government’s broad regulation of a leading source of carbon pollution violated the “major questions” doctrine, which says Congress must speak clearly if it wants agencies to act on important political and economic issues.

While the doctrine is not new, environmental lawyers say the way the Supreme Court’s conservative majority applied it in West Virginia is novel — and was heavily influenced by two Covid-19 cases the justices recently decided outside of the court’s formal briefing, argument and opinion protocols.


The move illustrates a new willingness by the Supreme Court to let its emergency actions inform its decisionmaking in other cases.

“Those were not detailed decisions that really laid out the doctrine in any full way,” said Kirti Datla, director of strategic legal advocacy at Earthjustice, of the Covid-19 orders Roberts cited in West Virginia. “It’s almost a trial balloon from the Supreme Court. It goes out beyond their control.”

In recent years, the Supreme Court has received criticism for increased use of its emergency docket to make major policy changes. Consequential orders have sometimes come late at night, without explanation and at times over the objection of four justices.

Liberal justices — and recently, even Roberts himself — have criticized their conservative colleagues for flexing their muscles too strongly and frequently in emergency orders, which have been used to tamp down robust environmental regulation (Greenwire, April 6).

This term, the justices appeared to respond to the scrutiny by considering some applications for emergency action on an expedited basis, meaning they would hear arguments and issue opinions in those cases — albeit on an abbreviated schedule.

That’s the course of action the court took before it issued a 6-3, ideologically divided decision this year rejecting the Occupational Safety and Health Administration’s mandate that large, private employers require workers to be vaccinated against Covid-19 or submit to testing and masking. The court used the major questions doctrine to reach its decision (Greenwire, Jan. 14).

In his reasoning for applying major questions in West Virginia, Roberts cited the vaccine case — National Federation of Independent Business v. OSHA. He also called back to another emergency docket order in which the court struck down the Centers for Disease Control and Prevention eviction moratorium during the pandemic.

In that case, Roberts wrote in West Virginia, “[w]e found the statute’s language a ‘wafer-thin reed’ on which to rest such a measure, given ‘the sheer scope of the CDC’s claimed authority,’ its ‘unprecedented’ nature, and the fact that Congress had failed to extend the moratorium after previously having done so.”

The problem with the chief justice’s reference to the Covid-19 cases, said Datla, is that the court appears to have built a legal doctrine on the foundation of expedited litigation that has not traditionally been seen as binding precedent.

“There are reasons to be concerned because it’s not getting the full treatment,” she said. “Everyone’s not able to weigh in in the same way.”

The docket for the CDC eviction ban case — Alabama Association of Realtors v. Department of Health and Human Services — contains just six entries, and only parties directly involved in the proceedings had their voices heard in the case. No arguments were held.

In comparison, the docket for West Virginia boasts more than 100 entries, including multiple briefs from the parties and their legal allies, terminating with the announcement of a signed, 89-page opinion in which the court gave detailed reasoning for striking down the Obama-era Clean Power Plan, which set out to slash power plant emissions by shifting to renewable generation.

The expedited OSHA vaccine-or-test case had about half as many docket entries as West Virginia, including friend of the court briefs and a fast-tracked oral argument. The justices issued a 30-page ruling, including a dissent from the three liberal justices.

The unsigned majority opinion never mentions the major questions doctrine by name.

Instead, the court cites its findings in the 16-page CDC eviction moratorium order — another unsigned decision with the liberal wing in dissent: “We expect Congress to speak clearly when authorizing an agency to exercise powers of vast economic and political significance.”

Evolution of a legal doctrine

The Supreme Court’s West Virginia ruling was a victory for conservative groups that had been asking the justices to use the case to more clearly define the major questions doctrine.

For Jonathan Berry — a partner at Boyden Gray & Associates who authored an amicus brief for the America First Policy Institute championing that cause — the ruling simply formalized the doctrine’s application, rather than transforming its trajectory.

“The court is generally not breaking new doctrinal ground in the emergency docket; the main function there is to apply settled doctrine temporarily to new cases and facts,” Berry said. “The major questions doctrine is deeply rooted in cases that have come through the ordinary merits docket.”

In the amicus brief he authored, Berry pointed the Supreme Court back to cases like King v. Burwell, in which the court applied major questions to uphold the Affordable Care Act’s tax subsidies, and FDA v. Brown & Williamson Tobacco Corp., in which the court struck down FDA tobacco regulation under the Federal Food, Drug and Cosmetic Act.

The brief also points back to the Supreme Court’s 2014 ruling in Utility Air Regulatory Group v. EPA that said Congress did not clearly require emissions regulation for new vehicles under the Clean Air Act to trigger requirements for stationary sources.

Some environmental lawyers note that previous cases made only passing references to the major questions doctrine — if it was mentioned at all.

They say that it wasn’t until the EPA climate case that the Supreme Court, armed with the expedited Covid-19 orders, directly wielded the major questions doctrine to strike down a rule that appeared at least mostly consistent with an agency’s authority — even if there may be disagreement with the exact way the government exercised its power.

Those lawyers fear that the justices’ new approach to major questions will end up being inherently deregulatory (Greenwire, April 11).

Justice Elena Kagan, a member of the court’s liberal wing, articulated some of the same concerns in her dissenting opinion in West Virginia.

In Brown & Williamson, Kagan wrote, the court did not rely on a finding that Congress had failed to grant FDA regulatory authority over tobacco. Rather, she continued, the court found that there was already “a distinct regulatory scheme” in place for tobacco that was incompatible with FDA’s approach.

“Here, as I’ve shown and the majority effectively concedes, there is nothing equivalent,” Kagan wrote. “Search high and low, nothing in current law conflicts with, or otherwise casts doubt on, the Clean Power Plan.”

‘Early merits ruling’

For many legal observers, the jury is still out on whether more detailed explanations of emergency orders are a net positive or negative.

On the one hand, they say, emergency docket opinions offer greater clarity on the justices’ actions. On the other, those opinions offer more opportunity for justices to swiftly develop legal theories that will reverberate in other cases.

West Virginia Solicitor General Lindsay See, who led Supreme Court arguments against broad federal authority in the recent EPA climate case, said during a discussion this month hosted by the State Energy & Environmental Impact Center that justices will continue to have a tough time “striking that balance” between deciding cases in a timely fashion and giving issues their full due in court.

“One of the things I’m really interested to see in this going forward is if we are going to have more of these argued shadow docket cases,” See said.

“And if they’re going to have opinions attached to them,” she continued, “how is the court going to view the precedential effect of those opinions?”

During the State Energy & Environmental Impact Center discussion, Steven Wu, deputy solicitor general in New York, said that while the court’s move toward explaining some emergency orders could be helpful, it’s also important to understand the weight they could potentially carry.

“The court is plainly interested in doing this — entertaining these applications and saying substantive things — even when the same issues are present in their normal docket,” said Wu, who argued in favor of broad EPA climate authority when the West Virginia case was before a lower court.

“It is not an obstacle for them to say something about it when it could affect a pending case,” he continued. “And that’s the one piece of this that I thought was a little bit new from this term. It’s becoming much more just an early merits ruling, as opposed to a truly emergency litigation that litigants aren’t supposed to read that much into.”

Clean Power Plan and the ‘shadow docket’

EPA carbon regulation has a long and complicated history with the Supreme Court emergency docket.

The court’s historic 2016 stay of the Clean Power Plan — which stopped the rule from ever taking effect — is widely considered the starting point for the evolution of the court’s shadow docket from a place where the justices deal with mundane procedural issues to a mechanism for major policy change (Greenwire, Aug. 24, 2021).

Some court watchers have speculated that the unprecedented stay has contributed to the justices’ view of the case as one of special significance.

Litigation over the EPA carbon rule has taken other extraordinary turns. For instance, the Supreme Court broke with its own traditions in agreeing to hear the West Virginia case in the first place: At the time the justices agreed to hear the petition — which they did not have to do — the Clean Power Plan was not in effect and had no chance of being revived.

West Virginia “is going to be really important in the lower courts,” said Georgetown Law professor Lisa Heinzerling on a recent podcast hosted by the National Constitution Center.

“We have a lot of conservative judges who have been doing a lot of quite aggressive things in reviewing agencies’ action,” she said, “and I think this gives them an easy, all-purpose way of trimming statutes without really looking at them: Get in, see a major question, get out, say it’s not clear enough.”

Heinzerling added that the doctrine is “perfectly made for the Supreme Court’s shadow docket,” in that the justices can use emergency orders to protect lower courts that take an aggressive approach to major questions — and correct other courts that don’t.

Jonathan Adler, director of the environmental law center at Case Western Reserve University, said on the National Constitution Center podcast that it is notable that Roberts explicitly establishes that West Virginia is a major questions case very early in the decision.

If a litigant can persuade a court at the outset of litigation that the issue at hand is a major question, Adler said, “you have suddenly shifted the battleground against the agency.”

Before the West Virginia ruling, the Supreme Court rebuffed red states’ plea to revive an lower court injunction that found the Biden administration’s use of a key climate metric to bolster environmental rules violated the major questions doctrine (Greenwire, May 26).

But it will take some time to see how the doctrine plays out in other cases. In West Virginia, Roberts said its application is limited to “extraordinary cases” but does not define the category.

Robert Percival, director of the Environmental Law Program at the University of Maryland, said during a recent presentation at Vermont Law and Graduate School that he expects to see more emergency pleas from conservative litigants in the coming years.

“What you see now is something we have not seen — at least in my lifetime — on the Supreme Court, and that is that the conservative supermajority does not want to tolerate lower court decisions that look like they’re going to break in a liberal way,” Percival said.

“Given that the losing parties in those cases — if they’re conservatives — know the Supreme Court’s receptive to certain things like claims of religious liberty is being infringed upon or claims that an agency is overstepping the authority given it by Congress,” he continued, “it’s much more likely that the court’s supermajority will intervene.”

Reporters Lesley Clark and Niina H. Farah contributed.