SEATTLE — The Supreme Court’s decision not to freeze a trio of high-profile Biden administration air rules earlier this month could bode well for the survival of those regulations, some legal observers say.
While the October orders from the emergency, or “shadow,” docket did not seal the fate of EPA limits on methane from oil and gas production, carbon from the power sector and air toxics from coal-fired plants, the fact that the justices had a chance to immediately stop the rules and declined to do so has given some lawyers reason to believe that the regulations have a chance of withstanding the scrutiny of the conservative-dominated Supreme Court.
In prior emergency orders halting regulations, the court has heavily weighted one particular factor in its analysis — whether opponents of the rule are likely to win their case, said Megan Herzog, a partner at the law firm Donahue, Goldberg & Herzog, during a panel discussion Thursday hosted by the environmental section of the American Bar Association.
“The court is just going to assume that there are great harms on both sides and that it would just sort of be a wash, and all that’s left for the court to do is to think about likely merits success,” said Herzog, whose firm has represented environmental groups that defend Biden-era EPA rules in court. “So perhaps we can infer that’s what happened here.”
