Supreme Court Shadow Docket Harbors War Over Biden Air Rules

An increase in emergency petitions this summer at the US Supreme Court could derail the Biden administration’s air emissions plans, while opening the floodgates for challengers to launch similar campaigns against the agency’s efforts to regulate air pollution.

Some of the Biden administration’s recent actions to stem air toxics and climate emissions are at risk of being halted, including power plant rules, mercury standards, and methane limits.

Republican-led states, companies, and industry groups who filed the emergency stay applications claim that the Environmental Protection Agency is crafting rules that stifle innovation and put pressure on industry to comply with unreasonable rules.

“For EPA generally, this movement towards the Supreme Court being willing to hear stay motions is going to make implementation of any environmental statutory program, if not more difficult, then it certainly will create more uncertainty,” Holland & Hart LLP partner Emily Schilling said.

The pattern was set off with a June decision in Ohio v. EPA, a case challenging strict traveling ozone rules that add new states and industry to a tougher compliance regimen.

The US Court of Appeals for the District of Columbia Circuit denied challenger requests to have the ozone rule frozen while litigation over its legality carries on in court, but justices overruled that decision and paused the rule.

The Ohio decision flies against the Clean Air Act’s mandate to put health over cost to industry, and it sends a signal to critics that challenges to rules don’t need to be fully litigated in order to prevail, according to Paul Miller, executive director of the Northeast States for Coordinated Air Use Management.

What followed was a surge of similar emergency stay applications for other emission standards.

Focus on Details

Challenges to four major EPA rules have landed on the shadow docket since June, with more than two dozen state and industry applicants at the helm. Standards to quell methane leaks are the latest to be challenged, with an application for emergency stay docketed last week.

All of these rules have moved through the D.C. Circuit, which has denied all previous requests to freeze their implementation with one-page orders, which Schilling said is likely “frustrating” justices who then dive in for a closer look.

“If there are millions of dollars likely to be spent by industry on implementation of a rule where there is question as to whether EPA may have overstepped, the Supreme Court is willing to look in part, I think, because the D.C. Circuit not only won’t do it, but never explains its reasoning,” Schilling said.

The US Supreme Court emergency docket, colloquially called the shadow docket, is where justices rule on quick-turnaround petitions without full briefing from lower courts. Critics of EPA air rules have been utilizing its power since the days of the Obama-era Clean Power Plan—which was indefinitely stayed during litigation.

“The Supreme Court has created a dynamic on the shadow docket that really invites chaos and invites industry to make outlandish claims that don’t get the scrutiny that they would in the lower courts,” Environmental Defense Fund attorney Vickie Patton said.

But unlike with the Clean Power Plan, legal brawls surrounding Biden’s air actions aren’t targeting sweeping agency authority under the Clean Air Act. These cases focus primarily on more specific details of power plant, mercury, and other pollution limits, and how EPA either overreached or crafted requirements that are arbitrary and capricious.

The EPA in a statement said it had no further information to provide on pending litigation.

Threatening Clean Air

In the methane application, Oklahoma and other applicants argue that the agency ignored comments from stakeholders about increased compliance flexibilities, instead adopting a quicker deadline “without any meaningful engagement with these concerns, committing the same arbitrary-and-capricious error that justified a stay from this Court in Ohio.”

If the Supreme Court continues the trend of taking up more detail-oriented emergency stay petitions and repeating their determinations in Ohio, “that has real implications on implementation of any president’s environmental priorities and programs,” Schilling said.

This trend leaves some court watchers worried that potential challengers are now galvanized to file similar petitions in a “turbocharged” shadow docket, which could have profound impacts on clean air as more rules drop out of play.

And that prospect is concerning for clean air experts like Miller, especially since Good Neighbor, Mercury and Air Toxics Standards, and other contested rules aren’t hugely impactful for industries that have already been complying with stringent controls for years.

“It’s opened the door, and successfully, for these challenges to halt these rules that, in terms of their breadth, are nothing like the predecessor rules,” Miller said. “Everything’s fair game, I don’t know where this stops.”