Major Questions Doctrine May Not Be What Administrative Foes Seek
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
Issue
4
Bethany A. Davis Noll

Regardless of what happens with the Chevron cases in the Supreme Court this term, both undecided at press time, the related Major Questions Doctrine will continue to be a weapon of choice against administrative actions implementing environmental laws. But will those challenges succeed?

The Supreme Court first announced the MQD in 2022 in West Virginia v. EPA. The doctrine allows courts to overrule administrative actions if they can describe them as significant for political or economic reasons—hence, addressing "major questions." In order to defeat the challenge, an agency needs to point to clear congressional authority to address that question in the specific way that the agency chose.

This summer, in the consolidated cases of Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, the Supreme Court will decide whether to overrule Chevron, the 1984 decision that created a doctrine in which courts should defer to an agency’s expertise if the relevant congressional authorization is ambiguous. But whatever happens with the Chevron cases, a court can ignore it anyway by finding a major question is involved.

Natasha Brunstein of New York University Law School recently surveyed cases that cited West Virginia between June 2022 and October 2023 for an article in the Administrative Law Review. She described cases about guns, visas, hydrofluorocarbons, elections, nuclear storage, student loans, and protections for tipped employees. More recently, the doctrine came up in cases about sentencing, a minimum wage rule, and cryptocurrency.

Brunstein describes interesting trends. For example, courts have been deciding these cases along ideological lines. Brunstein surveyed 21 cases where judges addressed the doctrine in challenges to a Biden-era agency action or executive order. In eight, Democratic-appointed judges upheld the actions. In nine, Republican-appointed judges struck down Biden-era actions under the doctrine. Going against this trend, there were three cases where a Republican-appointed panel or judge upheld the Biden-era action at issue. And one case in the group was decided on other grounds.

Another trend is that the doctrine is not bounded by any criteria. Brunstein’s survey shows that courts have looked at a grab-bag of factors. But no court has established that certain factors are always required. And judges have not even been consistent across cases that they personally decided.

The factors include whether the issue has received congressional attention, the relevant statute was old, or that the issue was “highly controversial.” Other factors were the expense of the program, the benefits, and the presence or lack of a record regulating in that space. This grab-bag can only have enabled the ideological decisionmaking that has been on display.

The trend may nonetheless be tilting against an indiscriminate application of the MQD based on partisan preference, as more courts reject the challenges to agency actions. In the recent minimum wage rule case Bradford v. Department of Law, a majority Republican-appointed panel on the 10th Circuit rejected a MQD challenge. The petitioners argued the doctrine should apply because the rule will cost employers billions of dollars. The court found that Congress had given the agency broad authority to regulate in that area and that there was nothing new about the type of regulation at issue.

The recent sentencing case United States v. White was decided by another majority-Republican panel, this time on the 7th Circuit, and that panel also rejected the MQD argument. After explaining that the “contours of the doctrine remain hazy,” the court held that the sentencing commission both had discretion in formulating the challenged guidelines and had authority to make the decision, thanks to a statute that authorized it to “establish sentencing policies.”

Another court rejected the MQD argument recently in an enforcement case that the Securities and Exchange Commission brought against Coinbase, a crypto-asset trading platform. Coinbase claimed that the doctrine applied because the SEC was seeking to regulate an industry worth $1 trillion. While crypto is new, the court found that “the challenged transactions fall comfortably within the framework that courts have used to identify securities for nearly eighty years.”

The irony is that parties in the Chevron cases this term, including West Virginia, whose 2022 suit against EPA led to the propounding of the MQD, want the Court to overrule the 1984 precedent because it has caused “widespread confusion and wildly different approaches.” They argue that courts should not be left “to their own devices to figure out how to apply it.” As this review of the MQD cases shows, those are the exact circumstances that are on display already with the new doctrine.

Major Questions Doctrine May Not Be What Administrative Foes Seek.

Court Thwarting Needed Executive Actions
Author
Abigail Dillen - Earthjustice
Earthjustice
Current Issue
Issue
2
Parent Article
Abigail Dillen

Regulatory action that delivers on the protective mandates of our bedrock environmental laws has never been more important. As unyielding planetary deadlines bear down on us, our government must rise to the intertwined challenges of climate change, water shortages, mass extinction of species, and intensifying social injustice. But the president’s authority to act is coming under concerted attack from the Supreme Court’s conservative majority, which is rapidly destabilizing administrative law and the assumptions that underlie our modern government.

In West Virginia v. EPA, the Supreme Court enshrined what Justice Kagan calls the “made-up” major questions doctrine. In essence, this new clear statement rule invites judges to restrict executive authority to implement broad congressional mandates whenever the political or economic stakes are high. Last term, in Sackett v. EPA, the Court fashioned yet another clear statement test and applied it with devastating implications for water and wetlands, as even Justice Kavanaugh underscored. This term, in Loper Bright Enterprises v. Raimondo, the Court’s conservatives are likely to go further still, shrinking agency discretion to resolve statutory ambiguities under Chevron and enlarging the federal courts’ purview to prescribe the contours of permissible regulation. In other words, the high court is creating new judicial tools to block regulatory action that is urgently needed in a time of crisis.

This legal sea change is shifting the calculus for agencies that may pursue less protective policies in hopes of avoiding “major question” problems, which may be unavoidable depending upon the subjective preferences of individual judges. For the Biden administration, which needs to partner with the private sector to drive the transition to a cleaner economy, there is already enormous pressure to accommodate industry preferences in the regulatory context. The major questions doctrine magnifies that pressure, especially before courts that are inclined to replace agency deference with deference to industry. This dynamic obviously invites regulatory capture.

Since the 1940s, Congress has legislated on the premise that it can pass broad statutory mandates that will be implemented by expert agencies that, in turn, make law and policy judgments to administrate effectively. That practical reality animates the Administrative Procedure Act and the customary deference that courts have long afforded agencies. The courts have recognized that presidential administrations, unlike judges, are accountable for that oversight at the ballot box.

President Biden campaigned on a platform that promised strong and swift action to address climate change. To keep his promise, he must compel the overdue cleanup of dirty industries by the end of the decade. When the Supreme Court erects barriers to climate action, it is insulated from political consequences. In contrast, the president may pay for the government’s failures to keep people healthy and safe.

Of course, it is essential that judges take an independent “hard look” at agency actions to ensure they advance statutory purposes and comply with the APA’s reasoned decisionmaking requirements. When presidents run afoul of statutory mandates or seek to roll back environmental protections unlawfully, the courts are the only check on that abuse.

But that core responsibility is not motivating the Supreme Court’s recent decisions. Rather, the Court is encouraging judges to apply new tests that are biased against regulatory action. In the absence of agency deference, the arguments presented by the best-resourced litigants will have even more sway. In the environmental context, those are typically polluting industries.

The Biden administration is finalizing an important suite of regulations that are based on well-settled statutory authority. Judges can and should uphold these new rules to the extent they are supported by strong evidentiary records and legal arguments. Until very recently, a responsible administration could be confident in its chances of prevailing in court. Now, as the Supreme Court grabs more power and invites lower courts to exercise it with less restraint, the future is uncertain.

Originalism, Democracy, and Environment
Author
Sarah E. Hunt - Joseph Rainey Center for Public Policy
Joseph Rainey Center for Public Policy
Current Issue
Issue
2
Parent Article
sarah hunt

The real potential for an originalist Supreme Court to use this year’s Loper Bright Enterprises v. Raimondo litigation to overturn the 1984 Chevron v. NRDC decision is flaring intense legal discourse. Critics posit that such a move will undermine environmental protections. An originalist Supreme Court, however, even in the absence of Chevron deference, is not inherently antithetical to environmental protection. Instead, an originalist framework, correctly utilized by the court, can foster a more robust, democratically accountable, and legally sound structure for environmental protection.

Originalism, the judicial philosophy advocating for interpreting the Constitution as understood at its enactment, often aligns with conservative legal thought and the Federalist Society, an organization with which six of nine court members affiliate. While this approach might appear to constrain modern environmental regulation, it inherently respects the separation of powers, a cornerstone of American constitutionalism. At a time when concerns are growing within the legal academy about the risks authoritarianism increasingly poses to our democracy, a court committed to protecting the separation of powers is vital. By adhering to the text of the Constitution and statutes as written, the Court promotes our democracy by providing oversight for the executive. The Roberts Court has shown, time and again in recent years, its willingness to stick to guiding principles at the expense of conservative political interests in a range of cases. These include declining an opportunity to weaken or overturn Massachusetts v. EPA.

An originalist Court’s rigorous review of regulation should serve as a crucial check on executive power no matter who occupies the White House. By ensuring that agencies do not exceed their statutory authority, the Court upholds the principle of checks and balances.

If the Roberts Court overturns Chevron, it will signal a shift from the dominance of agency interpretation to a more rigorous judicial review of regulations. This change does not necessarily spell doom for environmental protections. Instead, it ensures that agencies like EPA base their actions on clear statutory mandates and sound legal grounding, thereby enhancing their legitimacy.

If agencies can no longer rely on broad interpretations of ambiguous statutes, Congress must craft more straightforward, more precise environmental legislation. This shift will place the responsibility of environmental policymaking in the hands of elected legislators, hopefully fostering greater public participation and debate in shaping these policies. While democracy is often messy, environmentalists seeking durable, equitable environmental protection laws must embrace the challenge of building consensus in legislative chambers, regardless of what the court does with Chevron.

Originalism and textualism can ensure that significant government policies emerge from the legislature, the branch most accountable to the people. This is a feature, not a bug—especially in the environmental protection context. Bipartisan efforts like the Infrastructure Investment and Jobs Act are more stable and less challenged in the courts than policies perceived as partisan, such as the now-defunct Clean Power Plan or the Inflation Reduction Act.

The courts and agencies are neither the singular nor best hope for American environmental stewardship. There are now 83 members of the Conservative Climate Caucus in the House. Senator Bill Cassidy (R-LA), inspired by a resolution calling for a federal pollution tariff that the Republican-controlled Louisiana legislature passed unanimously in 2023, recently introduced legislation to enact a federal carbon border adjustment fee.

Overturning Chevron would not be a threat to environmental protection. Instead, it will allow Americans to strengthen the legal foundation of environmental regulations, enhance democratic accountability, and respect the separation of powers.

The Capture of the Court
Author
Robert Percival - University of Maryland Francis King Carey School of Law
University of Maryland Francis King Carey School of Law
Current Issue
Issue
2
Cover Story Image

Beginning in 1970, Congress enacted a remarkable set of laws designed to provide comprehensive protection for the environment. These laws mandated that federal agencies establish regulatory programs to carry out the new statutes. The federal courts initially played a major role in the development and implementation of the pollution and resource laws and the regulatory programs they created. As a result, the United States today enjoys far better environmental quality than most of the rest of the world, and millions of American lives have been saved.

Enduring public support for environmental protection has made federal environmental law remarkably durable. With Congress now paralyzed by partisan gridlock, the judiciary has become the battleground for environmental controversies. But in recent years the Supreme Court has been captured by a super-majority of justices hostile toward environmental regulation and the administrative state in general. These jurists have manufactured new legal doctrines to reinterpret the environmental laws in ways that significantly reduce their scope and effectiveness, contrary to the protective vision of the congressional drafters.

In 2016 the Court used its “shadow docket” in an unprecedented 5-4 order to block EPA’s Clean Power Plan before any court had even reviewed its legality. In 2018 Chief Justice Roberts issued an order to prevent the Juliana youth climate lawsuit from going to trial. In 2022 the Court’s conservatives dealt a blow to the Clean Air Act in West Virginia v. EPA, using the new “major questions doctrine” to strike down EPA regulations to control greenhouse gas emissions from existing power plants. Last year, in Sackett v. EPA the Court drastically restricted the reach of the Clean Water Act’s programs to protect wetlands. The Court has nearly complete control over the cases it chooses to hear, and its current docket reflects a right-wing agenda that more readily embraces claims by property owners and religious groups than victims of environmental harm. This article traces the roots of the Court’s capture by anti-environmental interests.

I served as a law clerk to Supreme Court Justice Byron R. White during the 1979-80 term. At the time the Court did not have clear ideological divisions, making it difficult to predict how particular cases would be decided. Only William Rehnquist had a clear conservative agenda to limit federal power, which made White extra vigilant whenever memos circulated from Rehnquist’s chambers.

In 1978, Rehnquist had tried to summarily reverse a decision to halt the completion of the Tellico Dam to protect an endangered species of fish. He circulated a draft per curiam reversal that initially garnered the support of five justices. But when the five could not agree on a rationale for reversal, the Court agreed to hear oral argument. Afterwards, two of the justices switched their votes, producing the landmark TVA v. Hill decision protecting the snail darter and giving teeth to the new Endangered Species Act.

In 1980, Rehnquist did obtain summary reversal of an important National Environmental Policy Act decision, Strycker’s Bay Neighborhood Council, Inc. v. Karlen. But Rehnquist’s effort to revive the non-delegation doctrine and strike down the Occupational Safety and Health Act in the Benzene case—more formally known as Industrial Union Dep’t, AFL-CIO v. American Petroleum Institute—garnered not a single vote from the other justices.

In 1985 all justices joined White’s opinion in United States v. Riverside Bayview Homes. This decision held that the “waters of the United States” to which the Clean Water Act applied included wetlands located near a lake in Michigan. White wrote that “on a purely linguistic level, it may appear unreasonable to classify ‘lands,’ wet or otherwise, as ‘waters.’” But he noted that “such a simplistic response . . . does justice neither to the problem faced by the Corps in defining the scope of its authority under Section 404(a) nor to the realities of the problem of water pollution that the Clean Water Act was intended to combat.”

In 1986, Antonin Scalia joined the Court. While serving as a judge on the D.C. Circuit, he had authored a law review article declaring that “strict enforcement of the environmental laws” might be “met with approval in the classrooms of Cambridge and New Haven, but not in the factories of Detroit and the mines of West Virginia.” Scalia mocked the assertion by fellow D.C. Circuit Judge J. Skelly Wright that the judiciary had a duty to see that the important purposes of the new environmental laws “are not lost or misdirected in the vast hallways of the federal bureaucracy.” Scalia, however, wrote, “Lots of once-heralded programs ought to get lost in vast hallways or elsewhere,” describing it as a “good thing” and likening the environmental laws to Sunday blue laws, honored in the breach. Scalia’s article was never mentioned during his confirmation hearings. He was approved by a vote of 98-0 on the same day that Senate confirmed Rehnquist to succeed Warren Burger as the new chief justice.

With the retirement of Justice Lewis Powell in 1987, the confirmation process became more contentious. The Senate rejected the nomination of Robert Bork by a vote of 58-42. President Reagan’s second nominee, D.C. Circuit Judge Douglas Ginsburg, was forced to withdraw after it was reported that he had smoked marijuana with students while teaching at Harvard Law School. In 1988 Justice Anthony Kennedy was confirmed after three days of hearings by a vote of 97-0.

With Rehnquist as chief justice, the Court showed renewed interest in property rights cases, but the outcomes were not predictable. During three decades on the Court, Rehnquist voted with the property owner in nine out of ten regulatory takings cases he participated in, while Scalia voted with the property owner in ten out of twelve. By contrast, Kennedy voted with the property owner in only six out of ten cases, but as the swing justice he was in the majority in all ten of them. Scalia’s greatest triumph in strengthening property rights came in 1992 with the creation of a new category of per se takings in Lucas v. South Carolina Coastal Council: when regulation deprives a property owner of all economically viable use of real estate. However, this decision proved largely symbolic, as instances of total regulatory wipeouts are rare.

A major change in the ideological balance of the Court occurred when liberal Justice Thurgood Marshall announced his retirement in 1991. Frequently quoted as saying that he intended to serve out his “life term” on the Court, Marshall was forced to retire due to ill health. President George H. W. Bush nominated the fiercely conservative Clarence Thomas to replace Marshall. Despite the fact that Democrats held a substantial 57-43 majority in the Senate, and the charges of harassment leveled by Anita Hill, Thomas was confirmed by a vote of 52-48, with 11 Democrats voting in the affirmative.

Still, when efforts to create important loopholes in the federal environmental laws were embraced by lower court judges, the Supreme Court turned them back. In June 1995 the Court in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon reversed a D.C. Circuit decision that would have greatly narrowed the reach of the Endangered Species Act. By a 6-3 vote the Court held that the ESA prohibits destruction of habitat and not just direct application of physical force on endangered or threatened plants and animals.

In 2001 the Court unanimously rejected a radical attempt to use the non-delegation doctrine to invalidate EPA’s tightening of National Ambient Air Quality Standards. In Whitman v. American Trucking Associations the Court, in an opinion by Scalia, held that the Clean Air Act’s directive to EPA to set a NAAQS to ensure an “adequate margin of safety” for health provided a sufficiently intelligible principle to guide agency discretion.

The beginning of a sea change in the process of selecting Supreme Court justices can be traced to President George W. Bush’s ill-fated nomination of White House Counsel Harriett Miers. In July 2005, Justice Sandra Day O’Connor announced her plan to retire. President Bush asked Miers to vet candidates to replace the first female justice. On July 19, Bush announced that he had chosen D.C. Circuit Judge John Roberts as O’Connor’s replacement. On September 3, Chief Justice Rehnquist died of complications from thyroid cancer. Bush then withdrew the nomination of Roberts to be associate justice and renominated him to replace Rehnquist as chief. Roberts was confirmed by a vote of 78-22 on September 29.

On October 3, President Bush then nominated his long-time friend Miers to fill O’Connor’s seat. Her nomination instantly sparked a backlash from those who wished to push the Court sharply to the right. Federalist Society leaders complained that she “was not one of us” and spearheaded an effort to convince Bush to withdraw the nomination. This campaign succeeded. On October 27, President Bush withdrew Miers’s name. Four days later, at the urging of Federalist Society leader Leonard Leo, Bush nominated Third Circuit Judge Samuel Alito to O’Connor’s seat. Leo organized a $15 million multimedia “political campaign” supporting confirmation. Alito was approved by a vote of 58-42 on January 31, 2006.

Alito’s confirmation left the Court split down the middle, with four conservatives, four liberals, and Kennedy as the swing justice. This split was well illustrated in June 2006 when the Court split 4-1-4 in Rapanos v. United States. The question in the case was whether a Clean Water Act permit was required to fill a wetland adjacent to the nonnavigable tributary of navigable waters. Led by Scalia, four justices endorsed a surprisingly narrow view of CWA jurisdiction, while four others said they would defer to the agencies and require a permit. Kennedy alone said the issue should be remanded to determine, on a case-by-case basis, whether any wetlands have a “significant nexus” to downstream navigable waters.

During his confirmation hearings as chief justice, Roberts had pledged to be a consensus-builder on the Court. While joining Scalia’s plurality opinion in Rapanos, Roberts authored a concurring opinion stating that if the agencies adopted new regulations more clearly defining what wetlands were covered by the CWA, such a rule would be entitled to deference. Because Kennedy’s was the deciding vote, his significant-nexus test became the focus of a new waters of the United States rule adopted by the Obama administration.

The greatest environmental victory of all time in the Court happened the next term, when Justice Kennedy joined the four liberals in Massachusetts v. EPA, holding that the agency has the authority under the Clean Air Act to regulate greenhouse gases and had not offered an adequate justification for refusing to do so. Chief Roberts in dissent would have wiped out standing for all climate litigation. Justice John Paul Stevens’s majority opinion for the 5-4 Court upheld the standing of states to sue EPA and rejected the excuses offered by the agency for not regulating GHG emissions. Kennedy’s vote was decisive, as it was in all 24 of the Court’s 5-4 decisions that session.

During his first term of office, President Obama made two appointments to the Supreme Court. In 2009, Obama nominated Second Circuit Judge Sonia Sotomayor to succeed retiring Justice David Souter. Sotomayor was confirmed by a vote of 68-31. In 2010, Obama nominated Solicitor General Elena Kagan to succeed retiring Justice Stevens. Kagan was confirmed by a vote of 63-37. These two appointments replaced justices with liberal voting records with jurists with similar views, maintaining balance on the Court.

An indication of conservative antipathy to EPA came in 2016, when the Court took the unprecedented step of staying EPA’s Clean Power Plan by a 5-4 vote. The Court had never before issued a stay of a regulation before it had even been reviewed by a lower court. Viewing the stay as a sign that the Supreme Court ultimately would strike down the regulations, lawyers for Oklahoma exulted that the CPP was “dead and will not be resurrected.” Four days later, Scalia died suddenly, making the stay his last vote.

Scalia’s death created the possibility of making the Court more sympathetic to environmental protection. Because any nomination had to be acceptable to Republicans, who held a 54-46 majority in the Senate, Obama nominated a moderate—D.C. Circuit Judge Merrick Garland—on March 16, 2016. But right-wing groups urged the Republicans to leave the seat open. A single anonymous donor contributed $17.9 million to the Judicial Crisis Network to fund an ad campaign urging Republicans to block consideration of the Garland nomination. Senate majority leader Mitch McConnell blocked all efforts to seat Garland, insisting that no nomination be reviewed until after the 2016 presidential election. With Hillary Clinton leading Donald Trump in the polls, some Republican senators argued for keeping Scalia’s seat open for years until a conservative became president.

During his first campaign, Trump vowed to appoint right-wing Supreme Court justices like Thomas and Alito. The Federalist Society,s Leo was asked to prepare a list of potential nominees. No moderates were to be included. As incoming White House counsel Donald McGahn explained, “There can never be another Sandra Day O’Connor.” The Judicial Crisis Network and other groups associated with Leo, including the Concord Fund, CRC Strategies, and others, are estimated to have received a total of at least $580 million to promote confirmation of right-wing judges and justices.

After Donald Trump was elected, editors of the Wall Street Journal urged the incoming president to have a Supreme Court nominee “on the runway” ready to take off after his inauguration. On January 31, 2017, Trump nominated Tenth Circuit Judge Neil Gorsuch to succeed Scalia. Gorsuch was confirmed 66 days later by a vote of 54-45 after Republican leaders exercised the “nuclear option” to allow a filibuster to be broken by only 51 votes instead of the previously required 60.

The confirmation of Gorsuch to replace Scalia did not immediately change the balance of power on the Court, which still rested with Justice Kennedy. In June 2018, Kennedy announced that he would retire. President Trump stated that he would choose the justice’s replacement from a list compiled by Leo. One of the people on the list was D.C. Circuit Judge Brett Kavanaugh. Kavanaugh had authored a controversial decision that struck down EPA Clean Air Act regulations to control interstate air pollution. In the 2014 EME Homer City case, Kavanaugh’s decision was reversed by the Supreme Court by a vote of 6-2, with only Scalia and Thomas dissenting. President Trump nominated Kavanaugh, who was confirmed by a vote of 50-48, after a Judiciary Committee hearing that included allegations of sexual assault.

In his first major environmental decision, Justice Kavanaugh was a moderating force like Kennedy had been. In County of Maui v. Hawaii Wildlife Fund, Kavanaugh joined Roberts and the Court’s four liberals in a 6-3 decision rejecting an attempt to create a huge exception in the Clean Water Act. The county of Maui argued that it did not need a CWA permit to dispose of its wastewater because it first was discharged into groundwater before emerging in the ocean. Noting that the CWA does not state that wastes have to be directly discharged into surface waters to require a permit, Kavanaugh joined Breyer’s majority opinion holding that discharges that were the “functional equivalent” of a direct discharge needed permits. Remarkably, dissenters Thomas and Gorsuch would have interpreted the CWA to enable polluters merely to pull their pipes out of the water to escape all permit requirements. Dissenter Alito would have required polluters to move their pipes a further distance away. As Breyer’s majority opinion noted, either interpretation would have opened a “large and obvious loophole” in the CWA.

The right-wing takeover of the Court was completed after liberal Justice Ruth Bader Ginsburg died of cancer on September 18, 2020. Eight days later President Trump nominated Amy Coney Barrett to the vacant seat. The daughter of a long-time lawyer for Royal Dutch Shell, Barrett declined to express views about climate change during her confirmation hearings. Despite Senate majority leader Mitch McConnell’s previous insistence that a new justice should not be confirmed in an election year, the Republican-led Senate rushed Barrett’s confirmation process and confirmed her by a vote of 52-48, one week before President Trump was defeated for reelection.

The editorial page of the Wall Street Journal has become “the Supreme Court whisperer,” lobbying the justices for outcomes preferred by Alito and Thomas. Six days before the leak of the Court’s Dobbs opinion overturning Roe v. Wade, the Journal published an editorial called “Abortion and the Supreme Court.” It predicted that Roe would be overturned by a 5-4 majority, with Alito writing the opinion. It opined that Roberts “may be trying to turn another justice” against overturning Roe and urged Kavanaugh and Barrett to resist such lobbying. Six days later the leak of Alito’s draft opinion in Dobbs confirmed the accuracy of the Journal’s information and may have solidified the 5-4 majority to overturn Roe, as the Court did on June 24, 2022. Despite calling Roe “an important precedent” during his confirmation hearings, Alito’s opinion in Dobbs declared it “egregiously wrong from the start,” It is fair to conclude that neither he nor any of the Trump justices would have been confirmed had they been honest about their views concerning abortion.

Six days after overturning the abortion precedent, the Court by a 6-3 vote struck down EPA’s Clean Power Plan in West Virginia v. EPA. Perhaps the most startling aspect of the case is that the Court granted review despite the Biden administration’s having abandoned the regulation. The six-justice conservative super-majority essentially said that it did not trust EPA’s promise not to reinstate the CPP.

Embracing what it called for the first time ever the “major questions doctrine,” the Court stated that any regulation of vast economic or political significance is valid only if it is supported by specific statutory language providing “clear congressional authorization” for it. Roberts, author of the majority opinion, indicated that even if there was no textual ambiguity in the statute, “mere textual plausibility” was insufficient to support regulations of economic significance. Of course, by its very nature, the Clean Air Act’s directive that EPA ensure healthy air quality throughout the nation requires the agency to issue regulations with such effects. As Kagan argued in her dissent, joined by Breyer and Sotomayor, the majority’s approach meant that an agency cannot “respond, appropriately and commensurately, to new and big problems.”

EPA had no desire to revive the Clean Power Plan because the GHG emission reductions it contemplated already had been achieved by market forces. Coal was used to generate only 18 percent of electricity in the United States in 2022, less than contemplated by the CPP. Thus, as the dissent argued, West Virginia v. EPA was essentially an “advisory opinion” telling EPA that the Court held the agency in low regard.

Last May, the Court in Sackett v. EPA reinterpreted the Clean Water Act to sharply restrict federal jurisdiction to protect wetlands. With the Court’s 4-1-4 split in 2006, Kennedy’s unilateral creation of the “significant nexus” test, requiring case-by-case assessment of the likely impact of filling wetlands on navigable waters, became the focus of efforts to assert federal jurisdiction.

The lower courts had little difficulty determining that the Sacketts’ property satisfied Kennedy’s significant-nexus test because there was substantial evidence that filling the lot would “significantly affect the integrity of nearby Priest Lake.” The Sacketts did not challenge the nexus finding, but argued that the Court should adopt the Scalia view that “waters of the United States” extend only to relatively permanent, standing, or “continuously flowing” bodies of water “forming geographic features.”

In its decision, the high court reinterpreted the Clean Water Act to sharply restrict federal jurisdiction to protect wetlands. Because all nine justices in Sackett rejected the Kennedy significant-nexus test, the Court was unanimous in reversing the lower court. But they split 5-4 with Kavanaugh joining the three liberals in arguing unsuccessfully against the majority’s exceedingly narrow interpretation of the reach of federal jurisdiction.

In his majority opinion Alito asserted that “the CWA can sweep broadly enough to criminalize mundane activities like moving dirt,” causing “a staggering array of landowners” to be “at risk of criminal prosecution or onerous civil penalties.” Alito then relied on dictionary definitions of “waters,” the very thing Justice White had warned against in the Court’s unanimous Riverside Bayview decision. He concluded that the waters of the United States over which the federal government has Clean Water Act jurisdiction include only “relatively permanent” bodies “of water connected to traditional interstate navigable waters” and wetlands with a continuous surface connection “making it difficult to determine where the ‘water’ ends and the ‘wetland’ begins. While the text of the CWA clearly authorizes regulation of wetlands “adjacent” to navigable waters, Alito interpreted “adjacent” to mean “adjoining.” A concurring opinion by Thomas, joined by Alito, even questioned the constitutional underpinnings of federal environmental law, arguing that the commerce power does not extend to protection of the environment.

Breaking with his other conservative colleagues, Kavanaugh joined the four liberal justices in criticizing the Court’s new test. Kavanaugh argued that “the Court’s “continuous surface connection” test departs from the statutory text, from 45 years of consistent agency practice, and from this Court’s precedents.” He noted that this will damage environmental quality. “By narrowing the act’s coverage of wetlands to only adjoining wetlands, the Court’s new test will leave some long-regulated adjacent wetlands no longer covered by the Clean Water Act, with significant repercussions for water quality and flood control throughout the United States.”

Criticizing Alito’s focus on the dictionary definitions of the terms “waters” and “adjacent,” Kagan argued that the majority created a “pop-up clear-statement rule” in order “to cabin the anti-pollution actions Congress thought appropriate.” Kagan observed that by making Congress’s intention only background noise, the Court has “appoint[ed] . . . itself as the national decisionmaker on environmental policy.” She noted that, taken together, West Virginia v. EPA and Sackett v. EPA “paint a picture of a Supreme Court that evinces a remarkable propensity for exerting its own policy preferences.” Perhaps the only virtue of Sackett is that, after 17 years of immense confusion generated by Rapanos, it clarifies the reach of federal jurisdiction—though in a way highly damaging to the environment.

When I served as a law clerk to Byron White 44 years ago, justices were quite concerned about maintaining the appearance of impartiality. “I have the loneliest job in Washington,” White once remarked, because he believed that he should not socialize with lawyers who eventually might be involved in cases that would come before the Court. Today, a vast network of right-wing organizations funded by dark money lavishes benefits on conservative justices while denouncing as illegitimate any efforts to require greater transparency.

Revelations that Thomas and Alito have enjoyed luxury vacations funded by right-wing activists have shaken public confidence in the Court. This practice is not entirely new. Scalia, who died of a heart attack at a luxury hunting lodge, had been the beneficiary of more than eighty free luxury vacations, some funded by the National Rifle Association.

Federal ethics regulations require the disclosure of substantial gifts to government officials, but the two justices claim they did not need to disclose their trips because they constituted “personal hospitality.” Effective in March 2023, the Judicial Conference of the United States clarified the definition of “personal hospitality” so that it does not cover private plane flights.

The editorial page of the Wall Street Journal has lashed out at journalists making the revelations, accusing them of trying improperly to influence the Court. When journalists at ProPublica contacted Alito to confirm that he and Leonard Leo had been the guests of billionaire Paul Singer on a trip to a fishing lodge in Alaska in 2008, the justice did not respond to them. Instead he published a vituperative op-ed in the Wall Street Journal entitled “ProPublica Misleads Its Readers,” which was published before ProPublica’s story. Alito argued that he did not know Paul Singer well, that his seat on the private jet otherwise would have been empty, and that he then was not legally required to disclose Singer’s largesse.

Thomas has received far more than free trips. His billionaire friend Harlan Crow paid his grand nephew’s tuition, and purchased his mother’s home from him and allows her to live there rent free. Another wealthy friend of Thomas apparently has forgiven a loan of $267,230 to allow him to purchase a luxury RV. In 2016, “a coordinated and sophisticated public relations campaign to defend and celebrate Thomas,” in Senator Sheldon Whitehouse’s telling in his book The Scheme, was launched. The campaign, which stretched on for years, included “the creation and promotion of a laudatory film about Thomas, advertising to boost positive content about him during internet searches, and publication of a book about his life.” The campaign was financed with “at least $1.8 million from conservative nonprofit groups steered by the judicial activist Leonard Leo.”

In a letter to Senator Sheldon Whitehouse (D-RI), Chief Justice Roberts on April 25, 2023, released a “Statement on Ethics Principles and Practices” that he said had been approved by all nine justices. It defines an “appearance of impropriety” as arising “when an unbiased and reasonable person who is aware of all relevant facts would doubt that the justice could fairly discharge his or her duties.” Responding to the Senate Judiciary Committee’s passage of a bill requiring the Supreme Court to adopt a code of conduct, Alito declared in an interview with the Wall Street Journal, “No provision in the Constitution gives [Congress] the authority to regulate the Supreme Court—period.”

In mid-November, the Supreme Court released a Code of Conduct drafted by the justices. While it contains no procedure for public complaints or enforcement, it declares that the justices are to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”

President Trump succeeded in adding three justices to the Court who were handpicked by now former Federalist Society leader Leonard Leo. Leo recently was rewarded for his efforts with an anonymous $1.6 billion contribution to expand his right-wing activism; the gift was later traced to billionaire Barre Seid. However, Trump recently rebuked Leo at a dinner at Mar-a-Lago because the Trump justices did not support efforts to overturn his election loss. Leo now laments that Trump’s actions make the appointment of the three judges look “so transactional.”

On November 30, the Senate Judiciary Committee voted on party lines to issue subpoenas to Leo and Crow. The subpoenas seek information concerning the extent of gifts the two have made to justices, particularly Thomas and Alito. Leo previously refused to turn over any information, claiming that he will not “bow to the vile and disgusting liberal McCarthyism that seeks to destroy the Supreme Court simply because it follows the Constitution rather than their political agenda.” Republican members of the committee tried to block the subpoena vote and then walked out when it was held. Following the vote Leo stated that he “will not cooperate with this unlawful campaign of political retribution.” Republican Senator John Cornyn (R-TX) declared that the Democrats had just “destroyed” the Judiciary Committee. The fierceness of their opposition itself raises questions.

The Supreme Court has been captured by a 6-3 conservative super-majority now engaging in a slash-and-burn expedition through federal environmental law. Three fierce conservatives—Thomas, Alito, and Gorsuch—question even the constitutional underpinnings of environmental law. Now the votes of at least two of the other three conservatives —Roberts, Kavanaugh, and Barrett—are the only restraints on this movement.

A ray of hope for environmental law is that a majority of the justices still appear committed to upholding principles of federalism. They repeatedly have rebuffed pleas by business interests to quash state climate litigation or state toxic tort judgments. This mirrors Chief Justice Rehnquist’s conscientious support of federalism principles even when they disadvantaged business interests (e.g., California’s moratorium on construction of nuclear power plants upheld in Pacific Gas & Electric v. State Energy Commission, or state restrictions on interstate disposal of hazardous waste struck down on dormant commerce clause grounds over Rehnquist’s dissent in Chemical Waste Management v. Hunt.

As the legal community mourns the death of retired Justice Sandra Day O’Connor on December 1, her legacy highlights how far the Court has swung to the right. O’Connor “was an avatar of change and progress, but she was also painstakingly centrist.” After her retirement O’Connor complained to a friend that “everything I stood for is being undone.” The current Court majority seems more interested in imposing its ideological views through raw power than decisions that are a product of reasoned argument over the law. No wonder public confidence in the Court is near an all-time low. For now, environmentalists must follow the advice of EarthJustice President Abbie Dillen and “lose loudly” when the Court issues decisions seeking to roll back environmental law.

COVER STORY A super-majority of justices hostile toward environmental protection has seized control of the Supreme Court, which once played a major and affirmative role in the development, implementation, and enforcement of pollution control and natural resources law.

The Court Takes Up Cross-State Air Again—but on Shadow Docket
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
Issue
2
Bethany A. Davis Noll

In February, the Supreme Court heard argument on the shadow docket in a case about EPA’s recent rule regarding air pollution that crosses state borders. Since the Court upheld a substantially similar rule less than 10 years ago, in EME Homer City v. EPA, it may be surprising that the justices would take the invitation to weigh in again so soon. But the composition of the high court has changed markedly since 2014. It will be interesting to see if the new lineup leads to a different result or whether the Court will stick to its own precedent. At press time, no decision on whether to grant a stay had come out.

Some background sheds light on the importance of this litigation. Under the Clean Air Act, EPA regulates ozone through a “national primary ambient air quality standard.” In 2015, EPA updated that standard for ozone, triggering a duty for states to submit plans that will ensure they meet the new standard. As part of that plan, they must control any emissions that “contribute significantly” to air pollution problems in downwind states.

If EPA disapproves of a state’s plan, the federal agency has two years to issue a plan that will regulate the sources directly. In this case, downwind states sued EPA to force a decision about whether upwind states had submitted adequate plans to control pollution that affected them. Ultimately, in February 2023, EPA made its decision in compliance with a court-ordered deadline. The federal agency found that 21 states had submitted plans that were inadequate; two other states failed to submit plans. That finding triggered EPA’s duty to issue a federal plan regulating sources in those 23 states, which it did in March 2023.

This disapproval plan has some novel features. First, it includes non-power plant sources, such as natural-gas pipelines and cement kilns. Second, it contains a trading system that tightens up if any of the sources that are part of the scheme close down.

On this second feature, previously the scheme set the total number of available allowances, which must be purchased to continue emitting, after an analysis of the number of sources in a particular state and the reductions that are possible at those sources through cost-effective technology. Thus, if a source closes down, the allowances that are allocated to that source would be added back to the market, enabling other sources to keep polluting. This tightening of the allowance market prevents that.

Now, after a series of challenges brought in courts of appeal across the country, EPA’s disapproval decision has been stayed in 12 states: Alabama, Arkansas, Kentucky, Louisiana, Minnesota, Mississippi, Missouri, Nevada, Oklahoma, Texas, Utah, and West Virginia. Those circuit courts cited concerns about the modeling data EPA used to make its decision, the factors that the agency considered, and the new features of the rule. The CAA directs petitioners to file any challenges to “nationally applicable” regulations in the D.C. Circuit. EPA has argued that the cases should be moved there. Decisions on venue and decisions on the merits in those cases remain pending.

This case does not have to do with the disapproval decision, though—at least not directly. Instead, Indiana, Ohio, and West Virginia, along with industry petitioners, have challenged the federal plan, arguing that EPA should have considered the fact that its plan would not go into effect in all 23 states, because of the arguments in those courts of appeal where the case has been stayed.

With that argument, petitioners have asked the Supreme Court to stay the rule for the rest of the 23 states: California, Illinois, Indiana, Maryland, Michigan, New Jersey, New York, Ohio, Pennsylvania, Virginia, and Wisconsin. Yet many of the states on that list support EPA’s decision and appeared to oppose the stay, including Illinois, Maryland, New Jersey, New York, Pennsylvania, and Wisconsin. Those states have argued that EPA’s federal plan is necessary to address the severe consequences of ozone-forming pollutants.

When the Supreme Court decided EME Homer City 10 years ago, it reversed a decision authored by Judge Kavanaugh, then of the D.C. Circuit. The high court held that EPA was not required to give states guidance on their plans before the federal agency disapproved one, and that EPA had reasonably considered costs when deciding on its rule’s emissions reductions.

In 2014, Justices Ginsburg and Kennedy helped make up the six-member majority upholding EPA’s decision. Now Justices Kavanaugh and Coney Barrett have replaced them. Yet, even though the conservative majority might lead to an EPA loss, the Court did not grant the stay requests reflexively. Instead, it left the rule in place and ordered oral argument on whether it should grant a stay. The impact of the new Court and its decision to hear oral argument on the shadow docket are both interesting features to watch in this case.

The Court Takes Up Cross-State Air Again—but on Shadow Docket.

Through the Looking Glass?: Chevron and the Future of the Regulatory Environment
US Supreme court building
Thursday, January 18, 2024

Yesterday morning, the U.S. Supreme Court heard oral argument in a pair of cases—Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce—that by all accounts have the potential to result in a seismic shift in administrative and regulatory law, including changes for courts, the President and federal agencies, Congress, and the public.

A Do-Nothing Rule in the Court Threatens Much Agency Regulation
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
Issue
6
Bethany A. Davis Noll

There aren’t many environmental disputes on the Supreme Court’s docket this term. But in one case the Court has granted certiorari on the question of whether it should overrule Chevron v. NRDC, one of the most important precedents in all of law.

The case involves an agency’s decision about implementing the Magnuson-Stevens Act. Congress passed that statute to “prevent overfishing and rebuild overfished stocks, and to protect, restore, and promote the long-term health and stability of the fishery.”

The statute directs the National Marine Fisheries Service to create fishery management plans, which include provisions for collecting data to be used to support the law’s overall goals. The agency promulgated a rule during the Trump administration requiring vessel owners to pay part of the cost of monitors who will collect the data, while also providing exemptions, waivers, and reimbursements that essentially eliminated the cost of the monitors.

Yet that payment requirement is what the case is about. A group of states, led by West Virginia, say that the agency “asserted power to force the family-owned and -operated fisheries it regulates to fund the agency’s invasive inspection program or else stop fishing.” And they complain that the lower courts sided with the agency simply because of the Chevron doctrine—a 1984 precedent that commands courts to respect an agency’s expertise in reasonably implementing ambiguous statutory language—while leaving the fishers “out of luck.”

Since that Supreme Court case was decided, Congress has set up countless regulatory programs where it has either tasked agencies with regulating within a very technical landscape, many of which are environmental statutes, or explicitly told them to exercise their judgment. For example, in an amicus brief led by Washington, D.C., a separate coalition of states points to statutes like the Natural Gas Act, which directs the Federal Energy Regulatory Commission to set rates for the sale of natural gas that are “just and reasonable.” In its brief, the U.S. government asked the Court not to overrule Chevron by pointing to the fact that Congress has legislated against the backdrop of the precedent for almost forty years. If Congress expected agencies to take certain interpretative steps because of the Chevron doctrine, then a court would threaten separation of powers principles by inserting itself into that decisionmaking role.

Interesting empirical research shows that Chevron has had some salutary effects. For example, Professors Kent Barnett and Christopher Walker explained in their brief that “Chevron reduces disagreements among federal courts over policy-laden judgments and thus promotes national uniformity.” They found that a nationwide interpretation of a statute is more likely to govern when a court applies the doctrine, as compared to the interpretations that come out of lower courts deciding on the “best reading” of a statute. They show that Chevron fosters agreement “across ideologically varied courts of appeals and panels.”

West Virginia’s argument against Chevron is that it is a “government-always-wins arrangement” that “feeds regulatory growth” with no limits. But in another amicus brief, Professor Thomas Merrill explains that the Chevron framework promotes “greater political accountability for regulatory policy”—and that any time Congress becomes concerned about too much agency discretion, it has the ability to restrict or eliminate that discretion. Merrill also explained that concerns about instability and bias can be addressed through existing doctrines that require agencies to consider reliance interests and follow strict notice-and-comment procedures whenever changing course.

In the Washington, D.C.-led brief, those states argue that the Chevron framework is needed for programs where the states are working together with the federal government to address complex scenarios that arise in the regulation of telephone companies, in addressing air pollution, or in issuing water quality standards. Chevron allows them to invest time and resources into their programs with the confidence that the federal agency’s regulatory decisions will be upheld as long as they are reasonable and in line with the clear language of the governing statute. Interestingly, West Virginia agrees that it is not helpful when “businesses must guess whether the agency’s action will be upheld.”

When there are either technical or complex challenges that Congress has instructed an agency to address, it is a troubling trend to see courts around the country make their own decisions about what Congress wanted. But recent data from the Pew Research Center show that only 25 percent of Democrats and 8 percent of Republicans say that they trust the federal government. Against that backdrop, this battle over how to interpret a fishing statute may not be that surprising. The question will remain how to rebuild that trust so that federal agencies can keep doing what we need them to do.

A Do-Nothing Rule in the Court Threatens Much Agency Regulation.

The High Court’s Environmental Docket Continues to Make Waves
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
Issue
4
Bethany A. Davis Noll

The Supreme Court decided two cases in May that will have profound implications for environmental protection around the country, Sackett v. EPA and National Pork Producers Council v. Ross.

The first is about whether the Sacketts can build a house on wetlands under the Clean Water Act’s protections, and is a startling attack on congressional authority. The CWA gives the federal government jurisdiction over “navigable waters” and defines that term as “the waters of the United States.” In a provision which divvies up permitting authority between the federal government and the states, the statute makes clear that “adjacent wetlands” are included.

Justice Alito wrote the majority decision. It holds that waters of the United States are, first, “relatively permanent, standing, or continuously flowing bodies of water forming geographical features that are described in ordinary parlance as streams, oceans, rivers, and lakes” and, second, that wetlands must have a “continuous surface connection with that water, making it difficult to determine where the water ends and the wetland begins.” The wetlands on the Sackett property do not satisfy this test.

In concurring opinions, authored by Justices Kavanaugh and Kagan (where they concurred in the judgment about the Sackett property only), the two accuse the majority of blatantly rewriting the CWA. As they both explain, the majority admits that some wetlands must qualify. But rather than stick to the word “adjacent,” which is in the act, the Court goes for something like “adjoining” instead. Those two concepts are different. An adjacent wetland might be nearby a river, but it may lack the required “continuous surface connection with that water” if it is separated from the navigable water by a natural or artificial barrier such as a dike.

This change poses a threat to water quality and flood prevention around the country, as Kavanaugh laments. For example, wetlands on the other side of a levee along the Mississippi River, but which are crucial to flood prevention, will be unprotected. He also explains that the new definition will not provide any additional clarity about which waters are regulated. Without a scientifically moored understanding of the connections between different waters, these questions will persist.

On that topic, the majority opinion rejects EPA’s “policy arguments about the ecological consequences” of its decision, explaining that the CWA “does not define the EPA’s jurisdiction based on ecological importance.” But that again ignores the text of the statute, where Congress explained that the act’s primary purpose is to “restore and maintain the chemical, physical, and biological integrity of the nation’s waters.” James McElfish wrote in the ELI blog that it will now be up to states to protect wetland, but there are difficult hurdles there.

In the other big case Pork Producers, hog raisers challenged California’s new program forbidding them from selling pork that was raised inhumanely, invoking the “dormant Commerce Clause.” That doctrine is a gloss on the Constitution’s Commerce Clause and holds (in simplified terms) that states cannot intrude on areas of interstate commerce or regulate outside of their borders. According to petitioners, California violated that doctrine because the program would affect how pork producers in states like Iowa and North Carolina raised their pigs, if they planned to sell in California.

The case presented a threat to many state laws and policies, including health and safety laws as well as programs that encourage renewable energy because all of them can have extraterritorial effects. The Court agreed and, in an opinion authored by Gorsuch, relied on that point to reject the challenge.

One section of Gorsuch’s opinion, joined by only Thomas and Barrett, did not have majority agreement, but it is interesting to read now in light of their later votes in Sackett. The section addresses a doctrine that has developed under Pike v. Bruce Church, Inc. That case instructs courts to balance the burden on interstate commerce with the “putative local benefits” before striking down the state law under the dormant Commerce Clause. The three justices (all of whom would later sign the majority decision in Sackett) explain that they will not strike down California’s program under that doctrine, because policy choices about moral or health issues “usually belong with the people and their elected representatives.” They point out that if Congress would like to regulate pork production and preempt California’s program, it can. And in their view, Congress is “better equipped” than the Court to “identify and assess all the pertinent economic and political interests at play across the country” for purposes of adopting a uniform nationwide rule. Now refer back to Sackett, where Kagan accuses the majority of adopting a “reflexive response to Congress’s enactment of an ambitious scheme of environmental regulation.” Given the later language in Pork Producers, she may be right.

The High Court’s Environmental Docket Continues to Make Waves.

In a Threat to State Priorities, a Broadside Against Standing
Author
Bethany A. Davis Noll - NYU Law
NYU Law
Current Issue
Issue
2
Bethany A. Davis Noll

A pair of cases are pending in the Supreme Court that may stretch or upend standing and administrative law doctrine, with dramatic impacts on environmental protection. The cases were brought by states against the United States. Individually or in groups, states are regular litigants in cases challenging environmental policies at the national level, but in both of these the United States argues that the states do not have standing.

The traditional standing rule is that in order to bring a lawsuit, the plaintiff, including state plaintiffs, must show an “actual or imminent” injury that can be traced to the defendant’s actions and which can be redressed by the court. Indirect injuries can satisfy this standard as long as they are concrete and particularized. The point is to make sure that there is a real case or controversy for the court to resolve.

First up is United States v. Texas. In their suit, Texas and Louisiana argue that a Biden administration immigration enforcement policy is illegal. The states claim they have standing to challenge the policy because it will lead them to spend more on criminal enforcement and other state services.

In response, the United States argues that the states need to show that they are incurring a direct injury, and that an indirect or incidental effect on a state’s “expenditures, revenues, and other activities” is not enough. The department explains in the brief that “almost every federal policy will indirectly affect the states themselves” and that a contrary standing rule will “inundate” federal courts—as demonstrated by the many Texas-led challenges that have been filed against Biden-era policies, and California- and Washington state-led challenges filed against Trump-era policies.

The federal government’s argument elicited some surprise from the justices as the case was heard. When the United States conceded that its argument would limit states more than non-state plaintiffs, Justice Alito brought up the Court’s decision in Massachusetts v. EPA. In that case, the Court held that the state had shown that the federal government’s “steadfast refusal to regulate greenhouse gas emissions” presented an actual and imminent risk to the state, as “rising seas have already begun to swallow Massachusetts’ coastal land.” In addition, the state was entitled to “special solicitude” in the standing analysis because it has quasi-sovereign interests to protect. Rather than solicitude, Alito asked the federal government in the Texas case if it was proposing a rule of “special hostility” instead.

In the second case, Biden v. Nebraska, a coalition of states led by Nebraska challenges the federal government’s decision to provide debt relief to student-loan borrowers who are continuing to suffer the effects of the COVID pandemic. The states argue that they have standing, among other reasons, because the timing of the loan discharge means that they will not be able to treat it as taxable income under state law. The United States again argues that the “incidental” effects of the federal policy cannot provide a basis for standing—and that if they did, then “every state would have standing to challenge almost any federal policy.” The Nebraska case was set for argument in February.

Before these two cases, there had not been a major standing decision in some time—and there certainly have not been many pertaining to state standing. In December 2020, the Supreme Court decided Trump v. New York, holding that the coalition of state plaintiffs had not shown it had standing to challenge the Trump administration’s plan to keep undocumented people out of the census. The Court found that the challenge was premature because there were too many contingencies with how the Trump administration would carry out its plan. But that case did not get anywhere near what the federal government now seems to want to do in Texas and Nebraska.

There is another lurking issue in the Texas case, which may also affect the many environmental cases that are brought under the Administrative Procedure Act. This statute states, “The reviewing court shall . . . hold unlawful and set aside” an agency action upon finding that the agency violated the APA. Courts have routinely understood that “set aside” language as authorizing them to vacate agency actions when those actions run afoul of the statute—and courts have vacated many environmental rules promulgated in recent years. But the United States in Texas is now arguing that the act only allows a court to decide whether a particular agency action or rule is legal as to the parties in the case—and that it could still enforce the rule against other people.

Even if the plaintiffs’ arguments in Texas and Nebraska fail for other reasons, the United States’ position in these cases is something to watch.

In a Threat to State Priorities, a Broadside Against Standing.

Antithetical to Reasoned Decisionmaking
Author
Achinthi C. Vithanage - Elisabeth Haub School of Law
Elisabeth Haub School of Law
Current Issue
Issue
1
Parent Article
A smiling woman in a white blazer

The tale of two dockets is not one that is often told in law schools. Indeed, as students dive into the mechanics of the nation’s highest court, one learns only of the merits docket. This is the ordinary nature of the Supreme Court’s proceedings, where cases are granted review by four justices and which subsequently proceed to months-long briefings, oral arguments, and a majority opinion with detailed explanations for a given decision. But until recent years, the non-merits docket, with its fondness for caseload management, or the issuance of minor routine orders such as time extensions, was hardly newsworthy.

Today’s non-merits docket, however, contains a tale revealing the worst of times in the High Court’s jurisprudential history.

This tale of two dockets describes the extraordinary way in which the Supreme Court can make stay orders, without substantiation or transparency. Granted on rare historic occasions, emergency stay orders had been by no means a regular practice of the Court. But today, the justices are increasingly willing to permit or block agency action without explanation, by simply granting or denying motions to stay.

The above practice is the shadow docket, a phrase coined by Professor William Baude. Recent expanded use of the non-merits docket in this way rings warning bells for many. Indeed, the notion of unreasoned court orders seems antithetical to one of the core elements of the rule of law, one often touted by the Supreme Court in the administrative context: the duty to engage in reasoned decisionmaking.

Notwithstanding Supreme Court Justice Samuel Alito’s recent denial of anything “shadowy” going on in the Court’s use of this procedural function, there are dark implications for the environment. Recall the Supreme Court’s surprising intervention with the Clean Power Plan rule in 2016. In overruling the D.C. Circuit Court’s decision to keep EPA’s regulation to cut carbon emissions from power plants in place pending further review, Chief Justice Roberts, for the first time in the Supreme Court’s history, issued a stay on regulations before an initial review was conducted by a federal appeals court. No arguments were heard, nor a formal opinion given by the Court. However, four justices did feel compelled to note their objection to the order.

Or recall the 2018 Supreme Court stay order, issued without explanation, which effectively halted discovery and trial in the Juliana case, a constitutional climate lawsuit brought by youth plaintiffs against the U.S. government.

In 2019, when the Sierra Club secured a win against the Trump administration’s plan to fund the U.S.-Mexico border wall with Defense Department funds, the Supreme Court intervened by granting the government’s application for a stay with a mere sentence providing the reasoning for the decision. The result: the building of environmentally destructive barriers across wildlife refuges, national monuments, public land and waters, and through communities in multiple states.

In short, the multitude of stay orders issued in the last five years is irregular. The tilted appearance of those decisions in favor of certain administrations is apparent. The lack of reasoning and transparency in those decisions is unbecoming of the highest arbiter of this land. The shadow docket is, unmistakably, a cause for concern for an administration seeking strong environmental regulation.

While the tale of two dockets seems to be here to stay, the tale can certainly be retold. The Biden Commission, tasked with exploring Supreme Court reform, recently concluded its review and included, among its suggestions, an invitation to the Court to consider proposals “that may increase transparency, improve procedure, and generate more visible adherence of judicial ethics.” Indeed, recent actions by the Court, such as the accompaniment of its refusal to stay Maine’s vaccine mandate, with concurring and dissenting opinions, provides a glimmer of transparency and reasoned decisionmaking.

Whether this marks the beginning of a trend bringing the non-merits docket out of the shadows, it is too soon to tell.