When the Supreme Court blocked President Barack Obama’s signature climate regulation a decade ago, conservative justices were worried about the cost to industry, according to private memos reported by The New York Times.
Chief Justice John Roberts called it “the most expensive regulation ever imposed,” repeating a refrain common among critics of Obama’s Clean Power Plan. And although liberal justices argued the rule didn’t require action for several more years, Republican-controlled states and energy industries faced “immediate and significant harm” from having to make plans, Justice Samuel Alito wrote. “And this harm, once incurred, is by nature irreparable.”
Not mentioned in 16 pages of chamber memos from 2016 reported by the Times — documents that were not expected to see the light of day for several more decades — are the costs of not regulating greenhouse gases as they drive global temperatures to rise. The Clean Power Plan, proposed in 2015, aimed to reduce power plant climate pollution 32 percent by 2030.
“They should have been asking, ‘What are the public benefits from the rule, the costs of blocking the rule?’” said David Doniger, a senior attorney at the Natural Resources Defense Council. “And they didn’t even ask.”
A spokesperson for the Supreme Court did not respond to requests for comment.
The February 2016 stay of the Clean Power Plan, which came after the U.S. Court of Appeals for the District of Columbia Circuit declined to block it, sent shock waves across Washington. It was the first time the high court had stepped in to block a rule before a lower court had been able to rule on whether it was legal.
But some of the court’s conservative justices made the case that this was an unprecedented regulation.
The case would inevitably end up before the Supreme Court eventually, and there is “a fair prospect for reversal,” Roberts wrote in his initial memo.
In addition to casting a skeptical eye on EPA’s authority, Roberts also highlighted the “irreparable harm” the rule’s opponents would face if it wasn’t stayed immediately. Irreparable harm is one of the criteria to staying a regulation under Supreme Court precedent.
Roberts pointed to EPA’s modeling, which indicated the rule would cause a 2 percent decrease in coal production for the power sector in 2016 and 2017 and a 4.3 percent decrease in 2018.
“That harm, once incurred, is irreversible,” Roberts wrote. “Given the long lead times and high capital expenditures required for the construction of new plants, once a utility takes steps to comply with the rule its actions are not likely to be undone.” (In reality, coal production dropped 43 percent between 2015 and 2024 in the absence of any regulation, according to U.S. Energy Information Administration data.)
Roberts cited one analysis of EPA’s proposed rule that found it could increase energy system costs by almost $480 billion through 2031, although he acknowledged in a footnote that “their figures are likely at the high end of a possible cost range.”
Jody Freeman, director of Harvard’s Environmental and Energy Law Program, called it “especially galling” for energy and environmental experts to read the justices’ conclusions about complex issues such as compliance cost estimates and how the power grid works based on relatively thin briefs.
“There are technical analyses, economic analyses. They need time to go over them, to digest them, and think about whether their initial inclination is right,” said Freeman. “Well, if you just decide you know the answer before you read any of that stuff, you sort of have prejudged the answer.”
One liberal justice pushed back against Roberts’ cost figures. Justice Sonia Sotomayor countered that EPA had estimated that the economic costs would be “significantly lower” than the estimate Roberts shared.
However, neither she nor any other justice in the released memos cites the climate or public health benefits of the rule in trying to parse the irreparable harm.
Doniger suggested that the liberal justices avoided discussing the threats of climate change because they were trying to appeal to Roberts’ institutional sensibilities.
They “were trying to basically tell the chief justice, ‘Even if you’ve got these concerns, this isn’t the right way to proceed,’ and not sort of ‘both sides’ it by saying, ‘Yeah, but there’s big climate stakes,’” Doniger said. “And obviously it didn’t work.”
Conservative legal scholar Jonathan Adler said he wasn’t surprised to see the costs of climate change omitted from the justices’ internal discussions about what was to be — in theory — a temporary stay.
“The climate costs of delaying the Clean Power Plan by months when the deadlines were years in the future would be very small,” said Adler, a professor at William & Mary Law School.
In reality, however, the Supreme Court’s stay of the Clean Power Plan meant the rule never went into effect. Donald Trump was elected president later in 2016, and he replaced the rule with a far less restrictive regulation for coal-fired power plants.
The D.C. Circuit rejected Trump’s rule in 2021, paving the way for the Supreme Court to invalidate the Obama regulation in its 2022 ruling in West Virginia v. EPA.
Adler said the memos discussing the 2016 stay show Roberts and other justices were already at that time formulating their opinions on the merits of the Clean Power Plan.
“If one thinks part of the takeaway is that the court is reaching conclusions about the merits when it evaluates these sorts of applications, it certainly looks that way,” Adler said.
Legal scholars have been salivating over the leaked memos because they offer uncommon insight into how the justices deliberate behind closed doors. These types of memos aren’t typically released until after the justices have died and donated their archives.
The Obama administration estimated climate and health benefits would be worth between $55 billion and $93 billion annually by 2030, when the rule would have fully kicked in. That far outweighed the agency’s estimated annual compliance costs.
“There just seems to be an utter disregard for any benefits the Clean Air Act can achieve,” said Robert Percival, head of the environmental law program at the University of Maryland, regarding the justices’ discussion.
Congress gave EPA the massive task of protecting air quality across the entire country, he said. “It’s not surprising it’s going to be costly to do that,” Percival said.
Meanwhile, because the Clean Power Plan never took effect, experts said the real-world outcome provided an unusual opportunity to test the Obama administration’s projections of the rule’s benefits.
Without a regulation in place, the U.S. met the Obama rule’s emissions reduction goals in 2019 as utilities by and large did exactly what the rule would have required — to burn less coal and get more power from natural gas and clean energy.
“It’s really a rare empirical demonstration of how much bullshit there can be in the briefs and how empirically the EPA — at least the old EPA — had its finger much more nearly on the real cost of things than the industry that’s fighting the rules,” Doniger said.
A decade later, the Trump administration has taken to ignoring the climate impacts of its regulations.
Rulemakings stripping all climate regulation from the vehicle and power sectors have not calculated the climate costs of those actions after Trump ordered agencies to stop assigning a dollar figure to climate pollution. EPA has also avoided monetizing the public health costs of its rollbacks, arguing the science is too tenuous to assign a specific dollar figure. The agency still touts specific industry savings from rules it repeals or eases.
That shift isn’t coincidental, argued Freeman of Harvard.
“I think that the Trump administration has a spidey sense that there might well be some sympathy on the court for this point of view, and they also know that the court has really had a target on EPA for some time,” she said.
In 2016, Roberts appeared particularly peeved at the Obama EPA because the agency had in a sense shrugged off a 2015 ruling that faulted EPA’s rulemaking process for the Mercury and Air Toxics Standards. Utilities had already spent billions of dollars to comply with the rule, EPA officials said at the time, a remark many Republicans saw as gloating. (The Obama-era MATS rule is still in effect after EPA corrected the error flagged by the Supreme Court.)
That history with the mercury rule “confirmed how EPA overreaching in the absence of a stay in these unusual circumstances effectively evades judicial review,” Roberts wrote.
Alito — who wrote that the challengers were “very likely to succeed on the merits of their claim” — agreed that if the court didn’t act immediately, EPA would win even if the Supreme Court later struck down the rule.
“If we fail to stay the rule and maintain the status quo, our resolution of the merits will not matter because the regulated parties will have complied,” he wrote. “Instead of robust judicial review, our opinion will be a mere postscript.”
James Goodwin, co-executive director of the Center for Progressive Reform, said it was notable that the Supreme Court in the mercury case had just chastised EPA for not considering both costs and benefits side by side at the same time.
“And then [in] this case … they don’t even follow the same damn principle,” he said of the justices. “It’s outrageous.”
Roberts’ and Alito’s statements indicated they had effectively already decided the outcome of the case and were moving to stymie EPA in response, Goodwin added.
“What you see in those memos is [that] they prejudged. There is no combination of legal or policy arguments that will change their mind. Their mind is inalterably closed,” he said. “Why do we even have a judiciary at that point? I mean, if that’s the way they want to operate, they’re welcome to run for Congress.”
It also kicked off a broader legal shift in which the Supreme Court has begun to more commonly make major decisions on its “emergency” docket, which was previously limited to issues like pleas from death row inmates or fast-moving election disputes. Some court critics call it the “shadow” docket because of the opaque orders that emerge.
In the 2016 climate case, the court acted after receiving relatively limited briefing and offered no public reasoning for its decision. Some legal scholars argue this has become necessary as recent presidents have sought to take sweeping actions on executive authority.
But critics have long argued those limitations lead to less informed outcomes and greater confusion among lower courts, which are left to interpret the Supreme Court’s decisions with little to no explanation.
Justices Stephen Breyer and Elena Kagan raised such concerns in the newly revealed memos.
“Issuance of the order now may prematurely suggest a view on the merits of questions that now seem difficult,” wrote Breyer. He suggested a compromise in which the high court would later entertain targeted stay motions if a state sought a two-year delay from EPA but was denied.
Kagan warned that the high court was acting “without the benefit of full briefing or a prior judicial decision,” despite complex legal and regulatory questions.
The “abbreviated discussion of the issues at stake here makes it difficult for me to determine with any confidence which side is likely to ultimately prevail,” Kagan wrote, though she added “it seems to be at this stage the government has the better of the arguments.”
The memos also reveal that Roberts, at least, was leaning toward an argument made by the rule’s opponents who said that EPA was barred from regulating power plants’ greenhouse gas emissions entirely.
Some challengers to the rule argued that the Clean Air Act bars EPA from regulating sources under Section 111, the part of the law the Obama administration was using for greenhouse gases, if those sources are already regulated under Section 112, another part of the law that limits hazardous pollutants. For coal-fired power plants, Obama’s mercury rule meant EPA could not use Section 111 to limit carbon dioxide, those challengers argued.
That theory — which would have sidelined all other legal arguments and handcuffed EPA completely — was considered by many experts to rely on obscure questions about mismatched legislative language between the House and Senate when Congress passed the Clean Air Act. When the D.C. Circuit gathered in 2016 to hear arguments over the Clean Power Plan, Brett Kavanaugh — then a judge on that court — said the 112 exclusion argument felt like a “hall of mirrors.”
But earlier that year, Roberts had said behind closed doors that he felt like it was a “strong argument.”
Roberts didn’t elaborate, and no other justices addressed that issue in the memos that were made public.
Judge Justin Walker of the D.C. Circuit later endorsed that view when that court struck down the first Trump administration’s replacement regulation, the Affordable Clean Energy rule.
When that case was appealed to the Supreme Court, only one challenger continued to make the 112 exclusion argument. The high court initially said it would decide that question — but hours later reversed itself and said it would not consider the exclusion argument. Whether that reversal was an administrative error or an actual change in course by the justices is unclear.
The Supreme Court still was able to decide that EPA does not have the authority to issue sweeping climate rules for power plants.
Pamela King contributed to this report.
