SCOTUS gives the Biden administration breathing room on some big climate rules

The cases highlight an increased use of the court's "shadow docket."

Photo courtesy Otodo via Flickr.

Although its fall term is just heating up, the U.S. Supreme Court has already surprised critics by issuing orders allowing the Biden administration to move forward — at least for now — with some key climate rules.

The court’s three October orders all came through what’s known as its “shadow docket,” which critics worry can be used by the court to bypass normal procedures and kill climate rules before fully considering the merits of the challenges.

It is a worry that isn’t totally unfounded, with the court having issued an emergency stay through its shadow docket in June that blocked a key U.S. Environmental Protection Agency rule related to pollution that crosses state lines. In 2016, the court also used the mechanism to effectively kill a landmark Obama EPA power plant emissions rule.

So, after the court declined this past month to stay a major EPA rule that all but requires the U.S. to shut down its remaining coal fleet, among other measures, environmentalists let out a brief sigh of relief. One attorney called the effort by Republican-led states and industry groups to use the shadow docket “cynical,” but stopped short of celebrating the court for its decision. Another simply said the SCOTUS orders were a “victory for common sense.”

But it’s unlikely environmentalist concerns about the shadow docket will dissipate soon, even as industry lawyers claim the alarm bells are blowing things well out of proportion.

‘Quasi emergencies’

At issue in the shadow docket petitions before the Supreme Court were several EPA rules seeking to tamp down emissions of greenhouse gasses from power plants, emissions of planet-warming methane and emissions of toxic mercury. All three had been challenged by red states and industry groups that said the restrictions go beyond the EPA’s statutory authority and would pose major financial burdens on industry groups if left in place.

The D.C. Circuit Court of Appeals had already rejected requests to temporarily block implementation of those rules before the question of whether to stay them ended up before the Supreme Court. The D.C. Circuit is now moving forward with a more detailed analysis, too.

The Supreme Court’s shadow docket, historically, has been used for procedural matters like setting schedules or for issuing time-sensitive, emergency relief like injunctions or stays on executions. In the case of injunctions or executions, the point is to avoid irreparable harms from a flawed rule.

Unlike normal merits briefings — in which the court accepts lengthy arguments from parties, thoroughly considers the case via oral argument and then issues a detailed ruling sometimes months later — the shadow docket is much faster and involves a lot less development of a case.

Stephen Vladeck, a professor at the Georgetown University Law Center, told Landmark in an August interview that the shadow docket has evolved significantly in recent years and has been used by the court to weigh in on what he calls “quasi emergencies,” not just clear emergencies where harms are imminent.

For instance, while the EPA’s power plant emissions rule would clearly have a big impact on the energy industry by all but forcing America’s coal power plant fleet to shut down, concrete compliance deadlines are months to years away. And it’s not just environmental cases: The court earlier this year kept in place a hold on a Biden administration rule that would protect transgender and pregnant students from discrimination, sending an important signal from the court.

Some of the shift from “emergency” to “quasi-emergency” can be traced directly to the Trump administration, when the U.S. Justice Department significantly ramped up its applications on the shadow docket. The DOJ filed just eight applications for emergency relief between January 2001 and January 2017, but filed 41 applications during the Trump presidency asking the justices to intervene at early stages of litigation.

Vladeck said the more aggressive use of the shadow docket undermines central principles of transparency and thoroughly reasoned decision making that undergirds the judicial process and a healthy Supreme Court.

“I don’t think this is how the court is set up to function,” Vladeck said.

Much ado about power plants

Vickie Patton, general counsel for the Environmental Defense Fund, told Landmark in an interview before the recent decisions were released that she pins the shift in the Supreme Court’s increased use of the shadow docket in environmental cases to its decision to block the Obama administration’s Clean Power Plan back in 2016.

While that rule eventually ended up back before the Supreme Court — and yielded the landmark West Virginia v. EPA decision in 2022 that significantly curtailed the ability of federal agencies to write expansive regulations without clear congressional approval — Patton said the decision to block it via shadow docket eight years ago represented the start of a “really radical shift.”

Patton said the coal industry at the time was making very “hyperbolic” claims to try to block the rule, despite its promise to protect the health of millions of Americans through reduced pollution.

She said that the court’s decision to consider the latest EPA power plant emissions rule — and other environmental rules — illustrates the worrisome trend behind the shadow docket.

“The Supreme Court should not be basing its decisions on reflex. It should be basing its decisions on a very careful examination of the merits,” Patton said. “The shadow docket is subject to abuse.”

Buying time

Legal experts expect that, at some point, at least one of the environmental rules that ended up on the high court’s shadow docket will end up back there on merits, once the D.C. Circuit has a chance to fully weigh in.

In its brief order on the power plant rule, Justices Brett Kavanaugh and Neil Gorsuch said the rule doesn’t need emergency action since compliance work won’t begin until June and the rule could be considered by the appeals court quickly. (The court’s three liberal justices joined Chief Justice John Roberts and Justice Amy Coney Barrett in declining the emergency stay. Justice Clarence Thomas would have granted the stay, while Samuel Alito did not participate in the decision.)

In other words, irreparable harm isn’t imminent from the rule — and the D.C. Circuit needs to do its job.

Still, Vladeck, the Georgetown Law professor, said on his own Substack last week that it is unclear whether the recent decision by the court not to stay the power plant rule represents a shift towards what he would call a '“more conventional understanding” of irreparable harm.

And several legal experts told Landmark that the court may be buying time with the rules. With the 2024 election just days away, the Supreme Court may want to wait and see whether Donald Trump will beat Kamala Harris. That could effectively neuter the need for judicial intervention if his administration reverses the rules.

No good news for power plants

Either way, Jeff Holmstead, an attorney at the law and lobbying firm Bracewell and former EPA lawyer during the George W. Bush administration, said he thinks the courts opinion in the power plant case “doesn’t exactly bode well” for the rule’s future, even if there is some cause for concern for industry that Alito sat things out.

"If the next administration doesn't revoke the rule and the D.C. Circuit upholds it, it will almost certainly go to the Supreme Court, and I think other justices will be skeptical of it, too," he said.

Another attorney who represents industry interests told Landmark that he thinks the decision puts a lot of faith in the D.C. Circuit to act quickly, and that the damage to major companies that have to comply with the rule isn’t as far out as one might think.

That’s because the power plant rule has significant compliance requirements, and companies would rather err on the side of caution when faced with uncertainty. In other words, they will begin investing in expensive compliance measures even though the rule may not ultimately survive.

Notably, while the Supreme Court blocked the previous power plant emissions rule in 2016 and it never took effect, industry did invest in lower emissions technology anyway and reached the pollution reduction goals of the rule 11 years early.

By not acting now, the Supreme Court is allowing that, the attorney said.

“I think there is a lot of uncertainty and the rational business decision when you have a significant amount of uncertainty is — you’ve got to do it, you have to start the compliance process,” the attorney said.