This spring, Ohio v. EPAthe Supreme Court, in a 5-4 decision, stayed enforcement of an Environmental Protection Agency rule governing interstate air pollution pending legal proceedings challenging the rule on the merits. This decision was unusual, but not without precedent. In 2016, the Supreme Court also maintained the Obama administration’s clean power plan– Again by a 5-4 vote.
The court’s apparent willingness to impose a moratorium on major air pollution regulations, combined with a general increase in consideration of aggressive “shadow document” filings, encouraged filings by industry groups and conservative states. Multiple applications for stays under other EPA regulations. After all, if a court has done it twice, it’s likely to do it again. However, none of these recent applications have been successful.
In a long session of the court, the judges denied multiple application It calls for an end to EPA rules governing harmful air pollutants and methane emissions. And yesterday, the court (in a more closely watched case) Application for stay refused Biden administration rules to limit greenhouse gas emissions from power plants (basically the Biden administration’s replacement for CPP). Only Justice Thomas dissented. (Judge Alito did not participate.) [See also Sam Bray’s post on the application denial.]
Some people may be surprised by the court’s actions, but I don’t think they should be. No reason existed in these other cases to grant a stay of the CPP and Interstate Air Pollution Regulations.
The CPP’s retention was somewhat unusual, but it posed an unusual dilemma for the court (As I noted at that time). The court recently decided Michigan vs. EPAIn that case, the judges concluded that EPA regulations governing mercury emissions from power plants are arbitrary and capricious. However, the EPA did not pay much attention to the ruling and trumpeted the fact. After this decision, the EPA issued a press release stating that nearly all of the utilities it regulated had already made the necessary capital investments while the case was pending and had no other way to meet the deadline. . Those seeking to keep CPP in place emphasized this point, arguing to the court that they were essentially praising EPA’s ability to impose regulations without complying with the law. It was just a icing on the cake that EPA also declared that CPP made groundbreaking and unusually aggressive claims to agency authority.
Although the air pollution regulations of interest did not raise serious issues like CPP, this meant that petitioners, especially utilities, had no choice but to make substantial and irreversible capital investments. This was another example where it could be plausibly argued that there is no such thing. Comply with the rules while the judicial review is ongoing. So they could claim some degree of irreparable damage (and more damage than the day-to-day compliance costs; see Sam Bray’s excellent post on this point below) ).
A recent stay applicant tried to present a similar problem to the rules in question, but was unsuccessful. These other rules are not as broad or aggressive as the CPP. There is also no risk of the same type of irreparable harm, in part because the EPA has taken care to establish compliance deadlines that can withstand some degree of judicial review. It is also worth noting that in the case of the latest power plant regulations, the U.S. Court of Appeals for the DC Circuit stated: Order refusing to staytook the time to explain the decision and expedited the appellant’s legal challenge to ensure that regulated companies were not forced to incur significant compliance expenditures before the case proceeded.
Justice Kavanaugh (joined by Justice Gorsuch) stated this in part: Short opinion on denial of application.
In my view, applicants have shown that they are likely to succeed on the merits with respect to at least some of their challenges to the Environmental Protection Agency’s regulations. However, because applicants are not required to begin compliance work until June 2025, it is unlikely that they will suffer irreparable harm by the time the D.C. Circuit decides on the merits. Therefore, the court rightly rejects the stay application at this time. Given that the D.C. Circuit is proceeding with the dispatch, it should resolve the case this term. After the D.C. Circuit has decided a case, the nonprevailing party may, if the circumstances warrant, be subject to this court’s disposition of the discretionary motion and, if a discretionary award is granted, the final disposition of the case. Until such time is determined, appropriate relief may be sought from this court.
I think what this means going forward is that courts are developing a reasonable standard for evaluating stay requests for major regulations. As a general matter, such stays should be denied, especially if EPA has set reasonable compliance deadlines. But especially when there is a combination of aggressive agency authority assertions (think again of “key questions”) and compliance schedules that prematurely force regulated entities to make substantial capital investments ( Arguably, outages are more likely for regulated utilities operating under greater constraints (especially if those regulated entities have lower interest rates). This also means that regulators and the D.C. Circuit can reduce the likelihood of a stay by considering such factors themselves.
All of this is just a lengthy demonstration that judges are willing to provide extraordinary relief in unusual cases, but that we are far from ready for major environmental regulation.
