This morning’s New York Times contains a blockbuster scoop by Adam Liptak and Jodi Kantor: Internal memos from the Supreme Court discussing whether to stay the Obama Administration’s Clean Power Plan. The NYT has published a narrative story, a chronology of the memos, a list of “takeaways,” and the documents themselves.
The documents confirm what a few of us suggested at the time: The Court’s majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.
As a memo by the Chief Justice notes, the EPA had crowed that the Court’s Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:
Past experience makes the case for irreparable harm: On June 29 2015 we ruled that the EPA’s Mercury and Air Toxics Standards violated the Clean Air Act See Michigan v EPA, 135 S. Ct 2699. One day later the EPA announced that it was confident it was still on track to reduce the targeted pollutants in part because the majority of power plants are already in compliance or well on their way to compliance Janet McCabe Acting Asst Admin for Office of Air and Radiation In Perspective: the Supreme Court’s Mercury and Air Toxics Rule Decision In other words the absence of stay allowed the agency to effectively implement an important program we held to be contrary to law
While the posture is different, the Chief Justice’s concerns are in line with those that prompted to Supreme Court to make pre-enforcement review of agency regulations the default presumption in 1967’s Abbott Labs trilogy: Firms should not be forced to make substantial (and largely unrecoverable) investments to comply with regulations that may not be lawful exercises of agency authority.
The memos also reveal that the Chief Justice, if not the Court’s entire conservative wing, understood the “major questions doctrine” as a thing, highlighting what the Court had held in UARG v. EPA—another case invalidating EPA regulations governing greenhouse gas emissions. Recall that the Chief also highlighted this UARG language in his King v. Burwell opinion. Again, from the Chief’s initial memo:
[The EPA’s] interpretation of §7411 represents a new approach to the statute. Past rules under $ 7411(d) have contemplated that utilities could comply with the articulated “best system of emission reduction” solely through installation of control technologies (e.g. , scrubbers)-which seem to fit more comfortably within the statutory phrase. As we noted two terms ago, agencies will face high hurdles when they seek to use novel interpretations of a “long-extant statute” to “bring about an enormous and transformative expansion in [their] regulatory authority without clear congressional authorization.” Utility Air Regulatory Group v. EPA, 134 S. Ct. 2427, 2444 (2014).
The NYT obtained responsive memos from Justices Breyer, Kagan, and Sotomayor, and a memos supporting the Chief’s position from Justice Alito and, pivotally, Justice Kennedy. The memos make clear that, post-UARG, the conservative were very wary of efforts by the EPA to aggrandize its own authority in pursuit of greenhouse gas emission reductions. The conservative justices did want judicial review of agency action to be irrelevant. As Justice Alito wrote:
A failure to stay this rule threatens to render our ability to provide meaningful judicial review–and by extension our institutional legitimacy–a nullity. Whether the Clean Air Act gives the EPA the transformative authority it claims here is an important question. If we fail to stay the rule and maintain the status quo our resolution of the merits will not matter because the regulated parties will have complied Instead of robust judicial
review our opinion will be a mere postscript.
Justice Kennedy ultimately concurs on the grounds that, if a stay of the CPP is inevitable (suggesting he agreed with the Chief’s preliminary view of the merits), it might as well issue now.
The liberal justices, for their part, were wary of setting a precedent of this sort and suggested that an order could deny the stay, but suggest states seek extensions of the regulatory deadlines before asking the Supreme Court to take action (an approach similar to what the Court would later do in the Juliana litigation–deny relief with the suggestion that others should reconsider their position). While opposing a stay here, it is not clear any of the liberal justices (or, for that matter, any of the conservative justices) understood how issuing a stay here would encourage litigants to pursue such relief more aggressively in the future.
Note that had the D.C. Circuit stayed the CPP (which would have been appropriate given the lead times), the Court would not have been in the position of considering any of these questions. This is interesting because had the D.C. Circuit not later insisted on issuing its opinion invalidating the Trump Administration’s repeal of the CPP on the eve of President Biden’s inauguration in 2021, we would never have gotten the Supreme Court’s ultimate decision invalidating the CPP in West Virginia v. EPA (which I dissected here). It was the D.C. Circuit’s insistence on having its say in 2021, and issuing a decision that put the CPP back in force (even as the court stayed its mandate), that allowed the litigation against the CPP to continue.
The NYT does not reveal where the memos came from, but the memos contain one potential clue. All of the memos appear to be photocopies of the original documents on letterhead with the authoring justice’s initials or signature–save one. The memo from Justice Sonia Sotomayor’s chambers is not on letterhead, has no signature or initials, and (the NYT notes) appears to have the wrong date (likely a typo–“16” instead of “6”). This suggests the source had access to a non-final or non-circulated version of the Sotomayor memo, but the NYT gives no indication of why that might be.
If the memos came from Sotomayor’s chambers–and I stress the if–this would be the second climate-related case in which something unusual happened in Justice Sotomayor’s chambers. The other was AEP v. Connecticut, when Sotomayor was on the U.S. Court of Appeals for the Second Circuit. Then-Judge Sotomayor was on the AEP panel, and as I noted at the time, the case sat for years after argument and supplemental briefing without decision. The delay was so long that the issue was raised at her confirmation hearing. The decision ultimately issued after Sotomayor was confirmed, without her participation. The Supreme Court then unanimously reversed that opinion with Justice Sotomayor recused.
The post Leaked Supreme Court Memos Reveal Why Court Stayed Clean Power Plan (Setting Important "Shadow Docket" Precedent in the Process) appeared first on Reason.com.
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