SCOTUS stocks docket with blockbuster regulatory battles

By Pamela King | 02/21/2023 01:40 PM EST

One lawyer noted that the court’s recent cases show how “administrative law is being taken over by environmental law.”

The U.S. Supreme Court, as photographed Sept. 2, 2021.

The Supreme Court. Francis Chung/E&E News

In the next four months, the Supreme Court is expected to deliver a spate of rulings that will reshape administrative and environmental law.

At the midpoint of their term, the justices have nearly a dozen cases — and a handful of petitions — that provide plenty of openings for the court to undercut the Biden administration’s climate agenda. And many of the court’s six conservative justices appear hungry for those opportunities, said Tanya Nesbitt, a partner at the firm Thompson Hine LLP.

“We have a court that seems more apt to take cases that don’t really match old procedural regularity, a court that’s more willing to take a case that’s arguably moot and willing to use the shadow docket to intervene and reinstate lower court decisions,” she said. “It’s a strange time.”


The Supreme Court kicked off its term with oral arguments in Sackett v. EPA, a blockbuster case that has the potential to significantly narrow Clean Water Act protections for the nation’s wetlands and streams — and muddy the waters when it comes to implementing the Biden administration’s newly released rule codifying “waters of the U.S.,” or WOTUS.

Many legal scholars expect the Sackett case would not have made it before the justices — who reject most disputes that come their way — but for the emergence of the court’s new conservative supermajority. Court watchers expressed similar sentiments last term when the court granted West Virginia v. EPA, a case that asked the justices to toss out an Obama-era power plant emissions rule that had technically never gone into effect.

In its 6-3, ideologically divided ruling in West Virginia in June, the Supreme Court breathed new life into the “major questions” doctrine — a legal theory that says Congress must clearly authorize federal agencies to regulate significant economic and political issues.

Republican attorneys general have latched on to the doctrine as a key weapon to strike down any federal regulation — environmental or otherwise — that they oppose.

“If you’re fighting regulations right now, we’re seeing it time and time again that the major [questions] doctrine is being presented — and these are not environmental cases, many of them,” said John Cruden, a principal at the firm Beveridge & Diamond PC, during a Thursday panel discussion at the annual conference of the Environmental Law Institute and the American Law Institute.

West Virginia is “another example of how administrative law is being taken over by environmental law,” said Cruden, who worked at the Justice Department’s environment division under Democratic and Republican administrations and led it under former President Barack Obama. “It’s going to be an often-cited case, but the boundaries of this are hardly certain.”

The Supreme Court may soon have the chance to more clearly define the doctrine in an upcoming battle over President Joe Biden’s student debt relief plan or in other regulatory cases that are currently making their way through the lower courts.

For now, said Cruden, figuring out when to apply the major questions doctrine is a bit like former Supreme Court Justice Potter Stewart’s infamous threshold test for obscenity: “I know it when I see it.”

Here are the environmental cases and petitions currently awaiting further action from the nation’s highest bench.

Pending arguments

Biden v. Nebraska

The Supreme Court could use an upcoming battle over student debt relief to define the major questions doctrine it articulated in the West Virginia climate case in June.

In the expedited case, the justices will consider the Biden administration’s request to reverse a lower court’s freeze on the president’s plan to forgive up to $20,000 in federal student loans for eligible borrowers. The arguments may focus on the state’s’standing to challenge the Biden administration’s plan.

But the justices could also choose to dig in on the state’s argument that federal debt forgiveness meets the threshold of a significant economic and political matter that Congress must clearly authorize the executive branch to address.

Arguments are scheduled for Feb. 28.

Arizona v. Navajo Nation

Biden officials and Western states are going head-to-head with the Navajo Nation over the tribe’s claims to dwindling flows from the Colorado River.

The Biden administration is fighting a ruling from the 9th U.S. Circuit Court of Appeals that said the federal government has a “duty to protect and preserve the Nation’s right to water.” Arizona, Nevada, Colorado and California — four of the states along the 1,450-mile waterway — say the lower court’s decision will reduce the volume of water available to them.

Lawyers for the Navajo Nation say the Biden administration in its legal position is admitting that it made “a hollow promise” in earlier treaties to help the tribe secure the water it needs to survive and fulfill its spiritual practice.

Arguments will take place March 20.

Pending petitions

The Supreme Court could expand its environmental docket if it chooses to grant one of several pending petitions. Four justices must vote to agree to hear a case, and the court only grants about 1 percent of petitions that come its way.

Suncor v. Boulder County

Justices are waiting on the solicitor general to share the Biden administration’s position on whether a slew of climate liability lawsuits brought by municipalities belong in the state courts where they were filed — or in federal court, where oil and gas companies believe they are more likely to quash the suits.

The court’s invitation stems from a petition filed by Suncor Energy Inc. and Exxon Mobil Corp., which in June asked the justices to review a lower court decision that delivered a procedural victory to Colorado governments suing the companies to compensate them for climate impacts.

Lower courts have delivered more losses to the industry since then, prompting companies like Chevron Corp. and BP PLC to file similar petitions in other climate liability cases.

The venue dispute reached the Supreme Court in 2021, when the justices sided with industry, ruling in BP v. Baltimore that appellate judges must consider a wide range of arguments in favor of federal jurisdiction. Since then, however, lower courts have ruled in favor of the nearly two dozen local governments that are suing the industry.

Bohon v. FERC

The Supreme Court has yet to decide whether to give the green light for landowners in the path of the Mountain Valley pipeline to proceed with their case against the federal energy regulators who approved the 300-mile natural gas project.

Cletus and Beverly Bohon claim that the Federal Energy Regulatory Commission violated the Constitution by delegating its eminent domain authority to the pipeline developer. However, lower benches have said the case was improperly filed in district court. The Bohons are asking the Supreme Court to allow their challenge to continue to proceed.

Lake v. NextEra

Texas officials are calling for the Supreme Court to back a state law that grants certain utilities preferential treatment to build new electric transmission lines. A ruling in the case could impact similar laws in a handful of other states.

The Lone Star State says a lower court got it wrong when it ruled its “right of first refusal” law violated implied constitutional protections for interstate commerce, under the dormant commerce clause.

American Petroleum Institute v. Environmental Defense Center

The fossil fuel industry petitioned the Supreme Court in late January to clear the way for unconventional offshore oil drilling to be allowed again in the waters off the California coastline known as the “Galápagos of North America.”

The American Petroleum Institute, Exxon and offshore energy company DCOR LLC argue that a lower bench improperly upheld a ban on practices such as hydraulic fracturing, acid fracturing and matrix acidizing.

Alaska v. Haaland

The Supreme Court may also choose to get involved in a legal battle over the Interior Department’s power to stop sport hunters from baiting brown bears on the Kenai National Wildlife Refuge in Alaska. The case relates to an Obama-era rule that was overturned during the Trump administration and reinstated under Biden.

State officials argue that the Alaska National Interest Lands Conservation Act bars Interior from overriding state rules on how hunting can take place on federal refuges. The Interior rule at issue in the case is part of a broader push by the federal government to impose similar constraints on refuges and national preserves in the Last Frontier.

Pending rulings

The Supreme Court is expected to issue decisions by early summer in the following cases.

National Pork Producers Council v. Ross

The Supreme Court’s ruling in pork producers’ fight against a California animal welfare law has the potential to echo through legal battles over state climate and energy rules.

During arguments in October, the court appeared to lean toward greenlighting farmers’ dormant commerce clause challenge against California’s requirements for pork-producing sows to have room to stand up and turn around. But the justices also raised concerns about the broader impact of allowing the claim to proceed.

Dormant commerce clause arguments have been raised against state rules for low-carbon fuel and coal exports, and the claims have the potential to split the justices beyond their typical ideological divides. A conservative justice, for example, may favor a state’s right to impose an aggressive climate rule.

Helix v. Hewitt

The justices will also soon rule in a case that challenges whether a highly paid employee at an offshore energy services company is entitled to overtime pay. The high court’s decision could have implications for workers outside of the energy sector.

During oral arguments in October, the justices appeared inclined to uphold a decision by a lower bench finding that former Helix Energy Solutions Group Inc. supervisor Michael Hewitt should have received retroactive overtime.

Students for Fair Admissions v. UNC

Environmental justice advocates are watching to see which way the Supreme Court comes down in a case over race-conscious college admissions. A ruling against the processes used by Harvard University and the University of North Carolina at Chapel Hill could thwart the Biden administration’s efforts to address pollution in Black communities.

During arguments in October, justices searched for a path toward “race-neutral” policies that would require universities — and, possibly by extension, federal agencies like EPA — to instead prioritize considerations like socioeconomic status and cultural struggles to achieve diversity goals.

Axon v. FTC and SEC v. Cochran

The Supreme Court has another opportunity to scale back the power of the executive branch in a set of cases that deal with the authority of in-house judges at federal agencies.

Justices during oral arguments in November appeared sympathetic to claims that the use of agencies’ administrative law judges to resolve battles within the Federal Trade Commission and the Securities and Exchange Commission is a violation of the Constitution. A ruling to that effect would move enforcement actions more quickly to federal court and could have ripple effects for agencies like EPA, Interior and FERC.

Wilkins v. United States

Justices will soon decide whether Montana landowners ran past their statutory deadline to sue the Forest Service over an alleged change of terms on an access road that runs through their properties.

Larry “Wil” Wilkins and his neighbor, Jane Stanton, want to sue the Forest Service for posting a sign in 2006 along Robbins Gulch Road, indicating that it was open to the public. The landowners say the change in terms exposed their properties to hunters and trespassers.

The Forest Service argues that the Supreme Court should uphold a finding from lower benches that Wilkins and Stanton exceeded a 12-year deadline under the Quiet Title Act, which sets limits on legal challenges based on when a litigant knew — or should have known — that the federal government held a claim on the land.

Moore v. Harper

One green group has gotten involved in a high-stakes battle over the power of state courts to oversee federal elections — a fight that could hurt liberal, pro-environment candidates in some states.

During oral arguments in December, justices seemed inclined to hand at least a narrow win to conservative groups pushing to limit the role of state courts. But they could also choose to dismiss the battle after the North Carolina Supreme Court agreed to reconsider the underlying case.

United States v. Texas

The Supreme Court’s upcoming ruling in an immigration case could give the justices a chance to speak on legal procedural issues that have stymied environmental lawsuits, as well as federal air and water rules.

At issue in the case is states’ standing to sue over federal immigration policies — a question that is relevant for green groups that have at times had trouble establishing their power to sue over environmental rules. Justices could also use the case to crack down on nationwide injunctions — or broad court orders that allow federal district courts to single-handedly halt federal rules.

Sackett v. EPA

The Supreme Court’s decision in Chantell and Michael Sackett’s Clean Water Act battle is expected to be the most significant environmental opinion of the term. During oral argument in October, the justices appeared to struggle with elements of the landowners’ claim that their property near Idaho’s Priest Lake should not be subject to federal permitting requirements.

Still, Nesbitt said, there’s a good chance that at least five of the six of the court’s conservative justices will coalesce around a decision that favors the Sacketts’ position.

Such a ruling would spell trouble for the Biden administration’s newly finalized WOTUS rule, which takes a more expansive view of the Clean Water Act’s scope. The regulation is set to officially take effect March 20, although there are motions by Texas and industry groups to freeze its implementation.

“Until Biden’s WOTUS rule goes into effect, people are less likely to take action or seek permits,” Nesbitt said. “There is some chilling effect.”

Reporters Niina H. Farah and Lesley Clark contributed.