This post was originally published on Legal Planet. Reprinted with permission.
Last Friday, the D.C. Circuit issued a two-page opinion refusing to stay a regulation. The D.C. Circuit frequently denies stays, but this ruling was notable for three reasons: It allows an important climate change regulation to go into effect; it clarifies an important legal doctrine; and it has a good chance of being upheld on appeal — even though the U.S. Supreme Court overturned a previous regulation on the same subject.
The Biden administration’s regulation essentially requires coal-fired power plants to capture and permanently store their CO2 emissions. The rule replaces an earlier Obama regulation that took a different approach to power plant emissions by requiring states to reduce their use of fossil fuels in favor of renewables. Adding insult to injury for the coal industry, the Obama regulation also required using less coal and more natural gas.
The Supreme Court struck down the Obama rule in a case called West Virginia v. EPA. Using what it called the major questions doctrine, it said that EPA had overstepped by adopting a bold, creative approach in the form of changing the fuel mix on the grid. That made the Obama rule quite different from any previous EPA rule, a major expansion in agency power.
So what’s notable about the stay denial? First, the D.C. Circuit said that the Biden regulation did not present a “major question.” The D.C. Circuit held that there was no major question because the agency was merely telling a pollution source how to clean up its pollution, something “that falls well within EPA’s bailiwick.” Lower courts have been all over the place in trying to define the doctrine, so maybe the Supreme Court will provide more guidance when it reviews the D.C. Circuit’s ruling.
Second, the D.C. Circuit held that the parties challenging the Biden rule had failed to show “irreparable injury” from leaving the rule in effect. That’s a threshold requirement for a stay. To begin with, the court said, “actual compliance deadlines do not commence until 2030 or 2032 — years after this case will be resolved.” Moreover, to the extent states or industry felt a need to engage in long-term planning, a stay wouldn’t help, since they would have to prepare for the possibility that the plan would be upheld anyway. Finally, the states argued that they would have to submit plans to comply with EPA’s rule only two years from now, but it turns out that there are really no consequences for missing the deadline. In short, there was no reason why states and the industry couldn’t wait a year or two for the litigation to play out.
All well and good, you may say, but won’t the Supreme Court reverse the D.C. Circuit post haste? That’s always possible, but there’s an important reason to think the stay denial will stand. The reason is that one of the judges who joined the D.C. Circuit’s order was Neomi Rao. Judge Rao was regulatory czar under former President Donald Trump, and as you might guess, she’s no fan of EPA regulation. If she thought there was no basis for a stay, there’s a good chance some key conservative votes at the Supreme Court will go the same way.
As a consolation prize to states and industry, the D.C. Circuit expedited the case so they — and we — won’t have to wait so long for a ruling. That’s all to the good.
In other words, Friday was a very good day for EPA.
Editor's update: The states suing the EPA have now asked the U.S. Supreme Court to grant a stay.
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Daniel Farber | July 23, 2024
Last Friday, the D.C. Circuit issued a two-page opinion refusing to stay a regulation. The D.C. Circuit frequently denies stays, but this ruling was notable for three reasons: It allows an important climate change regulation to go into effect; it clarifies an important legal doctrine; and it has a good chance of being upheld on appeal — even though the U.S. Supreme Court overturned a previous regulation on the same subject.
Daniel Farber | July 11, 2024
To cushion the shock of abandoning Chevron, the U.S. Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least 70 times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause.
Daniel Farber | July 10, 2024
Regulations that were upheld by the courts during the Chevron era have some protection, but new regulations will be fully subject to Loper Bright rather than Chevron. The general refrain in the Loper opinion is “Skidmore deference.” What does that mean and when does it apply?
Daniel Farber | July 8, 2024
One thing about the Loper Bright decision is obvious: it overruled Chevron. So much for past law. What about the future? How should courts review agency regulations now that Chevron is gone? This post tackles a key paragraph in the Loper opinion where the U.S. Supreme Court discusses congressional delegation of authority to agencies. The Court discusses three types of statutes, and it will be crucial for judges in future cases to identify which type is present.
William Funk | July 2, 2024
I am appalled by U.S. Supreme Court Chief Justice John Roberts’ opinion in SEC v. Jarkesy because it is so dishonest in its use of precedent. Put aside for the moment whether fraud under the Securities and Exchange Commission’s (SEC) statutes is the equivalent of common law fraud, despite the clear differences between the two. The Chief Justice’s description of the law regarding “public” versus “private” rights as a basis for placing enforcement actions in an agency rather than a court is itself a fraud.
Robin Kundis Craig | July 1, 2024
The Supreme Court's decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce means that federal courts will have the final say on what an ambiguous federal statute means. What’s not clear is whether most courts will still listen to expert federal agencies in determining which interpretations make the most sense.
James Goodwin | July 1, 2024
The U.S. administrative state does not merely protect Americans against those threats that we are unable to protect ourselves from on our own. It is essential to a healthy economy, it provides a crucial platform for democratic self-government, and it functions as a great social equalizer. All of this is now at risk after the U.S. Supreme Court’s conservatives issued four separate decisions largely along ideological lines aimed at eviscerating this crucial institution. The administrative state has been built over the course of nearly 250 years, slowly and pragmatically, since the founding; it has taken just three decision days for the Court to undo much of that work.
James Goodwin | June 28, 2024
The American public is lucky to have the federal administrative state. Every day, it protects all of us from harms like heavily polluted air, consistently contaminated drinking water, and dangerous workplaces. It strengthens our democracy. And it ensures a fairer, healthier, and more inclusive economy. The good news is that the self-aggrandizing U.S. Supreme Court decision in Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce does not change that. And that is because it cannot change that.
James Goodwin | June 27, 2024
Earlier this week, the conservative House Republican Study Committee (RSC) issued a memo on how the party’s lawmakers should respond to the U.S. Supreme Court’s pending decisions in a pair of cases called Loper Bright v. Raimondo and Relentless v. Department of Commerce. In these cases, the Court is considering whether to overturn a 40-year-old legal doctrine called Chevron deference, which guides reviewing courts to defer to agencies’ reasonable interpretations of their statutory authority when relevant provisions are unclear.