Supreme Court ‘shadow docket’ halts another EPA rule

By Pamela King | 07/09/2024 01:39 PM EDT

Emergency rulings are “fundamentally changing the way EPA authority works,” said one environmental lawyer.

Supreme Court with a long shadow illustration.

The Supreme Court this term used its emergency docket to block an EPA air rule that has been in effect since August. Claudine Hellmuth/POLITICO's E&E News (illustration); Francis Chung/POLITICO (Supreme Court)

The Supreme Court is once again reaching out through its emergency docket to bring environmental protections to a standstill.

Last month’s 5-4 ruling that blocked EPA controls on smog-forming pollution that wafts across state lines is the latest in a string of decisions over the last eight years that have expanded the power of the Supreme Court’s emergency — or “shadow” — docket.

The emergency docket is traditionally reserved for nondivisive procedural matters that are settled quickly and without explanation.


But in 2016, the court — over the objections of four justices — did what a lower bench had refused to do and blocked the Clean Power Plan, a landmark Obama-era rule that sought to push the limits of EPA’s Clean Air Act authority to shift the power sector from coal to renewables.

“The issue was, did EPA have any business issuing this rule at all?” Sam Sankar, senior vice president for programs at Earthjustice, said of the Supreme Court’s analysis of the Clean Power Plan in 2016.

But conservatives’ claims against the “good neighbor” rule that the court froze in June, he said, focused on whether EPA explained itself well enough on a technical detail of a type of rule the Clean Air Act requires the agency to issue.

“If there are these minor technical problems on these rules, and they hold them up while a full lower court proceeding takes place, sometimes that takes years,” said Sankar. “It is fundamentally changing the way EPA authority works,” he added.

The Supreme Court’s June 27 opinion in Ohio v. EPA is the result of a change in procedure around the emergency docket. In a move that some legal observers say appears to be an attempt to increase transparency, the justices have recently plucked some requests for emergency relief, added them to their oral argument schedule and offered full opinions on the matters, in an expedited fashion.

They used that approach to swiftly block Biden administration Covid-19 vaccination and student debt relief policies. Those decisions split the court 6-3 along ideological lines.

The justices’ decision in Ohio v. EPA only temporarily stops the good neighbor requirements from taking effect while litigation plays out in the U.S. Court of Appeals for the District of Columbia Circuit. The lower bench, as it did in the case of the Clean Power Plan, had already found that challengers failed to meet the high bar to persuade the court to immediately block the rule, which has been in effect since August.

Republican-led states and industry groups had argued that the rule was fatally flawed after its implementation was frozen in more than half of the 23 states that were originally covered under the plan. They made their case to the D.C. Circuit — and later the Supreme Court — that they would be irreparably harmed if the rule stayed in effect.

EPA’s latest good neighbor rule is projected to reduce nitrogen oxides by 70,000 tons during the 2026 summertime ozone season, a more modest target than the agency’s 2011 Cross-State Air Pollution Rule, which projected annual NOx reductions of 340,000 tons during that period. Unlike that earlier rule, however, the latest version also sets limits on industries other than power plants, including steel makers and natural pipeline operators.

Jeff Holmstead, a partner at the law and lobbying firm Bracewell and a former EPA air chief, said the agency’s latest good neighbor rule carries unwieldy compliance costs and imposes requirements too broadly.

He said the emergency docket is the only way to stop a rule from taking effect — and that the justices may be signaling frustration that the D.C. Circuit isn’t acting quickly to stop expensive EPA rules.

“The message is if it looks like an agency is exceeding its authority, you need to step in and stay the rule before [industry needs] to step in and spend hundreds of millions of dollars,” he said.

EPA’s supporters say the Supreme Court’s ruling could send a signal to the D.C. Circuit that the justices do not think the rule is legal. They say the stay may lead to yearslong implementation delays that could be detrimental to public health and the Biden administration’s efforts to move the utility sector away from coal-fired power.

The stay ruling also sends a message to industry that it can use the Supreme Court’s emergency docket to stop rules it doesn’t like — instead of requiring companies to “put their money where their mouth is” and start finding ways to comply, said Sankar.

The Clean Power Plan, for example, never went into effect after the 2016 Supreme Court stay. The justices eventually invalidated the rule in 2022 in West Virginia v. EPA — even though the power sector met its requirement to cut carbon pollution 32 percent from 2005 levels more than a decade in advance of the regulation’s 2030 deadline.

“History has shown that industry is usually able to do this — not just usually, almost always able to do this — at far lower cost than it predicts,” Sankar said. “So changing the way these regulations go into effect has impact beyond even just the public health impacts.”

Barrett: Proceed with caution

While the evolution of the Supreme Court’s shadow docket is a hallmark of conservative control, at least one Republican-appointed justice isn’t impressed with the way the court is handling emergency matters.

In a dissent joined by the court’s three liberal members in Ohio v. EPA, Justice Amy Coney Barrett wrote that the court reached its decision in the good neighbor case “based on an undeveloped theory that is unlikely to succeed on the merits.”

She raised concerns about whether justices should have pushed EPA to quickly defend itself against claims from red states and industry that she said have “evolved” throughout the litigation.

“Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions,” she said. “Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”

Her criticisms reflect those raised by environmental attorneys after arguments in the good neighbor case. Megan Herzog and Sean Donahue, partners at the law firm Donahue, Goldberg & Herzog, wrote in a February blog post that the court’s decision to hold arguments and issue a formal opinion on the emergency request to stop EPA’s rule may have done more harm than good.

Herzog and Donahue said the justices during arguments appeared to forget that the emergency request from EPA’s challengers was dependent on just two factors: whether red states and industry groups are likely to win their case, and whether they will suffer irreversible harm if the good neighbor rule — which has already been around for nearly a year — stays in place during the litigation.

“Once robed and seated at the bench,” they wrote, “the Justices largely acted as if it were an ordinary merits argument arising from their tiny docket with the benefit of robust briefing, a joint appendix, and discrete legal questions of cross-cutting relevance on which they can render superior (or at least definitive) conclusions.”

Reporter Sean Reilly contributed.