Supreme Court could curb agency powers

By Pamela King | 10/01/2021 12:28 PM EST

The Supreme Court begins its next term Monday with opportunities to rein in the power of federal agencies like EPA. Francis Chung/E&E News

The Supreme Court could weigh in this term on the scope of authority bestowed to federal agencies.

With high-profile gun and abortion disputes on the horizon, the Supreme Court’s term begins Monday with a groundwater dispute between Mississippi and Tennessee.

But the real blockbuster environmental battles could come through a series of pending petitions for the Supreme Court to get involved in legal fights over the scope of EPA regulations under the nation’s bedrock clean air and water laws.

“The fight about the environment at the Supreme Court significantly overlaps with the fight about executive power and agency power,” said Sean Marotta, a partner at the law firm Hogan Lovells. “What we see in the court’s environmental rulings is not so much strong feelings about the environment but fears of agency overreach.”

Four justices must vote in favor of taking up a Supreme Court petition. The court grants only about 1 percent of cases that come its way.

Among the petitions the Supreme Court could choose to accept this term are a set of requests from Republican-led states and coal companies to overturn a ruling this year that struck down the Trump administration’s Affordable Clean Energy (ACE) rule (Energywire, Aug. 10).

The ACE rule gutted the Obama-era Clean Power Plan, which sought to curb carbon dioxide emissions from coal-fired power plants. The Biden administration has said it plans to craft a completely new regulation.

While legal experts say they expect the ACE dispute to land in the Supreme Court’s rejection pile, there is one argument that gives them pause.

In the petition North American Coal Corp. v. EPA, a coal producer has asked the court to decide whether the Clean Air Act gives the agency authority to impose climate regulations.

“Even though it’s a spurious argument, it’s a killer,” said Pat Parenteau, a professor at Vermont Law School. He added: “Maybe that will tempt some of the hard right.”

The justices will also have a shot at addressing agency powers in one non-environmental case on the calendar: a Medicare drug reimbursement dispute that could test the limits of Chevron deference, the 1984 Supreme Court precedent that provides federal agencies leeway to interpret ambiguous statutes.

“There seems to have been no reason for the court to have granted that other than the court wants to tighten the reins on Chevron,” said Sarah Harris, a partner at the firm Williams & Connolly LLP.

The coming term could also provide new insights on how the addition of Justice Amy Coney Barrett — who is now one of six conservatives on the nine-member court — is likely to affect the outcome of environmental and climate litigation for decades to come.

“The climate crisis is the new reality,” said Karen Sokol, a law professor at Loyola University. “If that’s not infused throughout government decisionmaking, the government’s not going to be much use to us.”

She added: “There’s a disconnect between that reality and the current Supreme Court majority.”

Environmental lawyers also fear that the conservative majority could eventually strike down the Biden administration’s climate regulations though the court’s “shadow docket,” a term used to describe the justices’ practice of issuing emergency orders without the briefing, argument and opinion-writing process that occurs in cases on the court’s merits docket.

The Supreme Court’s stay of the Clean Power Plan in 2016 was one of the first times the justices enacted a significant policy change through an emergency order (Greenwire, Aug. 24).

During a recent panel discussion hosted by the State Energy & Environmental Impact Center at the NYU School of Law, Oklahoma Solicitor General Mithun Mansinghani said he expects parties will keep seeking emergency relief from the Supreme Court if major policy decisions continue to come from the executive branch — rather than through acts of Congress.

“This is definitely a symptom of the larger issue of the rise of administrative law and a lot of policymaking happening in the administrative space instead of through legislation,” he said.

Here’s a look at this term’s major environmental battles:

Cases on the calendar

Mississippi v. Tennessee: The Supreme Court currently has just one environmental case on its calendar: a groundwater dispute between two Southeastern states.

Mississippi has made the unusual argument that it has sole claim — rather than a shared interest — to water in an aquifer that straddles the Magnolia State’s border with Tennessee. The dispute invokes the Supreme Court’s original jurisdiction over legal feuds between states.

This is one of several interstate water fights that have made their way to the Supreme Court in recent years. Legal experts expect many more such cases to reach the justices as water resources dwindle due to climate change.

Arguments are scheduled for Monday.

American Hospital Association v. Becerra: A fight over Medicare reimbursements for certain medications could pack a punch for environmental litigation.

The case deals with Chevron deference and the Department of Health and Human Services’ authority to set drug reimbursement rates based on the average cost of acquiring a medication and to set rates that vary depending on hospital group.

A broad ruling in the case could potentially affect future legal battles over EPA’s authority to craft climate regulations and other issues.

Arguments are scheduled for Nov. 30.

Pending petitions

In addition to coal companies’ and red states’ petitions on the ACE rule, there are several other pending requests for the Supreme Court to take up new environmental cases. Each petition faces slim odds of being granted by the court.

Here are the major environmental petitions the court could choose to accept in the coming months:

Sackett v. EPA: An Idaho couple is using their long-standing Clean Water Act legal battle to urge the Supreme Court to give a more definitive answer on the scope of the statute.

Michael and Chantell Sackett, represented by the Pacific Legal Foundation, have asked the justices to revisit the court’s famously muddled 4-1-4 ruling in Rapanos v. United States.

The 2006 decision resulted in two competing definitions of “waters of the U.S.,” or WOTUS, each of which has underpinned major Clean Water Act regulations during the Trump and Obama administrations. President Biden’s EPA and Army Corps of Engineers are expected to issue a new WOTUS rule in the coming years.

Dakota Access LLC v. Standing Rock Sioux Tribe: The developer of the Dakota Access pipeline is turning to the justices to weigh in on federal courts’ authority to order more robust National Environmental Policy Act reviews for projects.

Energy Transfer LP questioned whether an agency is required to resolve all criticisms of its analysis of a proposed project to the satisfaction of a court before finding that a project does not require a more rigorous NEPA assessment. Such a standard, the company argued, shifts power away from agencies to the courts.

The request follows a ruling earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit upholding a decision by a lower bench to toss out a key permit for the in-service Dakota Access oil pipeline. The court ordered the Army Corps to conduct a more stringent NEPA review of the project.

Dakota Access, which travels 1,172 miles between North Dakota and Illinois, is currently operating without its permit to cross beneath Lake Oahe in the Dakotas.

Monsanto Co. v. Hardeman: Monsanto is calling on the Supreme Court to stop a massive legal battle involving claims that the company’s Roundup weedkiller causes cancer.

The petition stems from a lower court ruling that upheld a $25 million award for California resident Edwin Hardeman, who said he developed non-Hodgkin lymphoma after exposure to glyphosate, the key ingredient in Roundup.

Monsanto argued that federal law should have blocked claims by Hardeman and other Roundup users.

Volkswagen Group of America Inc. v. Environmental Protection Commission of Hillsborough County, Fla.: The Supreme Court could choose to weigh in on Volkswagen AG’s argument that federal law should have blocked two states from seeking payment from the automaker over a diesel emissions cheating scandal.

Volkswagen has already agreed to pay more than $20 billion to resolve federal civil and criminal claims with EPA.

The Justice Department has asked the Supreme Court not to get involved in the automaker’s fight with Florida and Utah officials. Such requests by DOJ typically carry extra weight with the justices.

Volkswagen has filed a separate Supreme Court petition related to a similar legal fight in Ohio.

Multiple petitions to overturn McGirt v. Oklahoma: The Sooner State is calling for the justices to overturn, or at least limit, their 5-4 ruling last year that recognized nearly half the state as tribal reservation land.

The case, McGirt v. Oklahoma, dealt with whether the state had jurisdiction over a criminal case brought against a member of the Muscogee (Creek) Nation for an alleged crime on reservation land. The decision has also had implications for energy and environmental regulation in Oklahoma.

John Cruden, a principal at the firm Beveridge & Diamond PC, said he thinks the justices are unlikely to be swayed by Oklahoma’s arguments that the McGirt ruling has caused “sweeping turmoil” in the state.

After all, he said, the justices haven’t yet waded back into the debate over Clean Water Act jurisdiction, despite the regulatory ping-pong that has taken place since that issue last reached the court in 2006.

“They have never taken another WOTUS case after Rapanos,” Cruden said.

Reporter Niina H. Farah contributed.