Environmental Protection

Have justices opened gates for agency challenges?

By Robin Bravender

Many lawyers dismissed challengers’ novel attempt to ask the Supreme Court to step in and block the Obama administration’s climate change rule for power plants.

It had never been done before, they argued. In its bid to urge the justices to reject the request, U.S. EPA told the high court such a move would be “extraordinary and unprecedented.”

But yesterday, the court granted the request, shocking EPA’s friends and foes alike.

Now there’s precedent, and lawyers are wondering what it means for future challenges to major regulations from EPA and other agencies.

“They’ve opened a door,” Vermont Law School professor Pat Parenteau said. By stepping in to halt a rule before a lower court has weighed the case, he added, the court has suggested, “If you don’t like what EPA is doing — or I suppose other agencies as well — come see us.”

Simon Lazarus, senior counsel at the Constitutional Accountability Center, said, “There’s no doubt that people who are disgruntled with agency rulings are going to do this.”

Still, Lazarus added, it may be tough for other challengers to show the court that other regulations are as significant. “This is a matter which does have massive economic consequences that you’re not going to find in most administrative regulatory decisions,” he said.

Some critics of recent EPA regulations see it as a promising sign that the court was willing to intervene and freeze the controversial regulation. The Clean Power Plan, which aims to curb power plants’ greenhouse gas emissions, is the subject of dozens of legal challenges from nearly 160 parties in a federal appeals court.

“I do think it suggests that when important rules are being challenged in the lower courts and there is no stay that the court is willing to listen and enter a stay, and that’s sort of new,” said Tim Bishop, an attorney at Mayer Brown in Chicago.

“I think it’s a great sign that EPA isn’t going to be able to just ram through these rules,” he added. “They’ve got a series of rules that really, really stretch beyond breaking points the statutes, the language of the statutes. They’re driven by policy goals, not the statutes.”

The court issued its decision in a short order yesterday that offers little information about its reasoning for agreeing to block the EPA regulation (Greenwire, Feb. 9).

The order notes that the court was putting the rule on hold pending an opinion on the rule’s legality from the U.S. Court of Appeals for the District of Columbia Circuit and perhaps until the Supreme Court ultimately decides the case, which could take years. The order did note that the court’s four liberal justices disagreed with granting the stay.

Scott Fulton, who served as EPA general counsel early in the Obama administration, said he finds it problematic that the court didn’t offer its reasons for granting a stay. “It is altogether devoid of that kind of analysis, so we’re left to guess what was on the court’s mind,” he said.

Granting the stay request “increases dramatically the prospects for litigants to reach to the court in hopes of securing a stay,” added Fulton, who’s now president of the Environmental Law Institute.

While critics of the rule are heralding the court’s decision as a signal that it’ll ultimately knock down the Clean Power Plan, many backers of the rule are holding out hope.

“It’s not a promising development for the rule, but neither do I think it’s a foregone conclusion that the court will invalidate the rule in its entirety,” Fulton said. “We just don’t know.”

Jonathan Adler, a professor at the Case Western Reserve University School of Law, doesn’t see the high court’s intervention as a signal that such a move will become commonplace.

“I don’t think this suggests the court is going to be doing this sort of thing all the time,” Adler said. “This is an extraordinary case” where “EPA is asserting extraordinary authority,” he said, so it “shouldn’t be that surprising that you get an extraordinary response from the court.”

He added, “This is a big deal, and there are serious questions about whether the EPA has the authority to do any of this.”

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