Advocating for climate and clean air rules after a Supreme Court power grab

In the final week of its term, the Supreme Court issued a string of decisions expressing remarkable hostility to federal regulatory agencies and public health protections. Of most immediate importance to public health, the Supreme Court blocked EPA’s Good Neighbor Rule — a regulation that protects downwind states from air pollution. In the longer term, though, this group of decisions builds on and accelerates recent trends in the Court’s decisions and, cumulatively, amounts to a sea change in entire fields of the law. The jarring ripple effects will be felt for years to come. In particular, these decisions: 

• Carry out a massive judicial power grab that takes decisions out of the hands of subject matter experts and gives them to unelected and unaccountable judges; 

• Destabilize environmental regulation by making it more likely that different courts will reach conflicting decisions, that previously settled questions of law will be reopened, and that judges will overturn agency actions based on their own policy preferences; and 

• Demonstrate a striking distrust of environmental regulation and agency expertise more generally. 

Although these setbacks make it more difficult to develop and defend stringent pollution controls and policies that defend against the worst effects of climate change in court, they also show that CATF’s intensive, science-based legal advocacy is more important than ever.  

CATF’s Legal Team breaks down what these decisions — both individually and together — mean for clean air and the climate. 

The decisions 

Ohio v. EPA: Nitpicking agency explanations on the shadow docket 

In Ohio v. EPA, the Court put on hold an EPA air pollution regulation designed to prevent upwind states from harming downwind states and their residents. The regulation, known as the Good Neighbor Rule, limits emissions of nitrogen oxides — a precursor to smog — from power plants and other highly-polluting industrial sources in 23 states. EPA projected that it would save more than 1,000 lives and prevent more than 1 million asthma attacks per year by 2026. 

In a 5-4 decision, however, the Court sided with industry and allied red state challengers to issue an order temporarily blocking the rule. The Court’s opinion offered only the most cursory discussion of three of the four factors in its traditional test for issuing a stay, virtually ignoring the public health benefits of the rule to focus on its preliminary assessment of the merits. In so doing, the Court preempted the usual litigation process, in which lower courts first get a chance to review the administrative record and sift the parties’ arguments.  

Instead, the Court nitpicked the rule to find a single argument that was tangentially raised by commenters and barely developed in the briefing before the Court, and on that basis held that EPA had not adequately explained its rejection of that argument. Though the Court did not officially change the standard of review applicable to agency factfinding, it was unusually aggressive in its application of that test. As Justice Barrett wrote in dissent, the Court blocked a major EPA rule “based on an underdeveloped theory that is unlikely to succeed on the merits,” thereby granting “emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record.” 

Loper Bright: Eliminating Chevron deference 

The Supreme Court used Loper Bright Enterprises v. Raimondo, a case about fisheries management, to overrule a legal doctrine that has long been essential to how federal agencies implement and enforce federal law. Under that doctrine, known as Chevron after a 1984 decision, courts deferred to agencies’ interpretations of ambiguous terms Congress used in statutes as long as those interpretations were reasonable and within a range of permissible readings. For four decades, Congress, federal agencies, and the public have relied on this doctrine to create regulatory uniformity and to allow subject matter experts to figure out how to regulate pollution, protect public health, and plan energy development.  

What the Supreme Court left in Chevron’s place is unclear and likely to create both regulatory uncertainty and inaction. Although the Supreme Court referenced other doctrines that would give at least some weight to agency interpretations, it left it up to courts to determine the “single, best meaning” of statutes — a fraught task considering that the ambiguous statutory terms that Chevron applied to are by definition open to more than one interpretation. Facing that uncertain task, individual judges may interject their own policy preferences when deciding scientific, technical, and economic questions in which they typically have little training or subject matter expertise.  

One result could be a patchwork of decisions where the meaning of environmental statutes and regulations varies from court to court. Another is that judges hostile to environmental protections may feel emboldened to strike down pollution controls — a result more likely than ever in the increasingly polarized federal judiciary. Faced with these prospects, agencies may become hesitant to issue the regulations we need to confront climate change. The only winner here may be the Court. As Justice Kagan observed in dissent, the Court’s “majority disdains restraint, and grasps for power.” 

Corner Post: Destabilizing established regulations 

In Corner Post Inc. v. Board of Governors of the Federal Reserve System, the Supreme Court exposed “even the most well-settled agency regulations” to near-endless litigation. In 1948, Congress enacted a default six-year statute of limitations for any civil action brought against the United States, including claims brought under the Administrative Procedure Act (APA). The consensus for three quarters of a century has been that the six-year clock started running on typical APA challenges as soon as the agency published a final regulation. But in Corner Post, the Court dispensed with this understanding and held that the six-year limitations period runs separately for any individual starting at the time they are first injured by a regulation. This means that decades after an agency publishes a regulation, a new entity that did not exist at the time of publication may file a lawsuit challenging the entire regulation. Corner Post allows agencies to, as Justice Jackson observed in dissent, “be sued in perpetuity over every final decision they make.” 

The only respite from this outcome is that the Court’s decision does not affect statutes that explicitly set deadlines for judicial review by reference to when the agency acted. That group of laws includes the Clean Air Act, which requires petitions for judicial review of a regulation to be filed within 60 days of its publication. But absent such a provision, this decision empowers litigious, anti-regulatory plaintiffs to rehash long-standing regulations. The holding will destabilize administrative law, thereby harming everyone who relies on it, including regulated businesses; states, tribes, and local governments; and affected communities.  

Jarkesy: Weakening agency enforcement 

Securities and Exchange Commission v. Jarkesy involved the question of whether an agency — here the SEC — could issue civil penalties against a defendant through an agency adjudication, as opposed to taking up the case in a civil trial in federal court. The Supreme Court held that when the SEC seeks civil penalties against a defendant for securities fraud, the Seventh Amendment entitles the defendant to a jury trial in court. This decision goes against decades of settled understanding of the law, which has long reserved a role for agencies to enforce their regulations through civil penalties and has been further enshrined in statute (including in the 1990 Clean Air Act Amendments). 

While the case involved only the SEC, the opinion could have wider implications for other federal agencies that rely on in-house adjudications, including the EPA, the Federal Energy Regulatory Commission, and the Department of the Interior. The Court reasoned that when a case involves a “common law” action, such as fraud, or a monetary remedy for the sake of punishment, then it is covered by the Seventh Amendment’s right to a jury trial. In doing so, the Court severely narrowed an exception to that rule covering “public rights,” which allows Congress to assign agencies the power to adjudicate certain topics that involve harm to the public. 

Jarkesy diverts power from the Executive branch — where Congress had assigned it — to the Judicial branch. Because suing in court is more costly and time-consuming than administrative enforcement, this decision will almost certainly reduce the volume and frequency of agency enforcement actions, thereby undermining adherence to the law. It will also clog up the dockets of already overburdened courts, even as it further consolidates power in the judiciary. In the words of Justice Sotomayor in dissent, this “ruling reveals a … fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers.” 

The combined effect of these four decisions 

Describing the combined implications of these decisions, Justice Jackson warned of a coming “tsunami of lawsuits against agencies” that “has the potential to devastate the function of the Federal Government.” Together, these four cases could devastate the proper functioning of administrative agencies. They make it harder for agencies to do their jobs, produce uncertainty and instability in the law, embolden opponents of environmental regulation, and give both individual lower court judges and the Supreme Court greater control over the fate of regulations.  

Corner Post opens up old regulations to potentially endless review by federal courts. Whether litigants challenge old or new regulations, Ohio shows that the Supreme Court is ready to leapfrog over lower federal courts to review and pause regulations without the benefit of a close review of technical records. And when the Court prematurely reviews these regulations, Loper Bright allows it to fill gaps in congressional language with the Court’s own policy preferences instead of deferring to the technical expertise of administrative agencies.  

Even when the Supreme Court opts not to bypass lower court review, individual lower court judges, no longer bound to defer to agency expertise, can indulge their own policymaking preferences when interpreting statutes, leading to conflicting interpretations of the same statutory provision in different parts of the country. This will cause greater confusion and uncertainty over the fate of regulations and will ultimately require more frequent Supreme Court intervention to resolve the differences. To top it all off, if a regulation somehow survives litigation, an agency attempting to enforce that regulation by assessing civil penalties may have to return to court under Jarkesy.  

These developments come on the heels of other anti-regulatory decisions in recent terms, including West Virginia v. EPA and Biden v. Nebraska, where the Court doubled down on its use of the “major questions doctrine,” which requires that Congress speak with extreme specificity to authorize agencies to issue significant regulations. Once again, the Supreme Court has given itself and other federal courts new tools to dismantle regulations that protect public health and the climate. As Justice Jackson observed, the Court’s decisions this term eliminate several barriers to the “chaotic upending” of agency rules and allow judges to “apply their own unfettered judgment as to whether [a] rule should be voided.”  

What’s next 

The full extent of the fallout from this collection of cases remains to be seen, but this much is clear: the Supreme Court has abandoned longstanding norms and, as a result, the legal landscape for federal agencies tackling air pollution, public health, and energy issues has shifted tremendously.  

Faced with this new array of hurdles, agencies will find it more difficult to issue regulations that are necessary to stave off the worst effects of climate change and protect the health and livelihoods of communities across the country. And if agencies do issue such regulations, activist judges will only be more emboldened to strike them down based on contrived reasoning and incomplete analysis.  

Yet there are still steps that agencies can take — and which, supported by CATF’s advocacy, they are already taking — to fortify their actions. Now that they can no longer rely on deference to their legal interpretations, agencies must develop rigorous arguments that their actions are based on the best interpretations of their statutory authorities. This is particularly important when they interpret language in new statutes, such as the Inflation Reduction Act, for the first time: Loper Bright says that the Court will give particular weight to agencies’ contemporaneous and consistent interpretations of statutes. And whatever the statutory text, agencies need to produce comprehensive and airtight technical justifications for their rules to be prepared for the type of skeptical review exemplified by Ohio v. EPA. 

With several recent regulations, CATF’s advocacy has already helped agencies chart a way forward in this new world. Take, for instance, CATF’s work building and defending EPA’s methane regulations for oil and gas facilities, which was finalized late last year. At CATF, we know building durable regulations begins well before a proposal is released, and in this case, we’ve worked with this rule in mind since before methane was even recognized as a regulated pollutant. In this case, our experts built a strong factual and technical record showing that demonstrated technologies and mitigation approaches — which have been put in place by other jurisdictions and that many in the industry have already utilized — are appropriate. Once implemented, the rule will provide important protections to communities. Now, we are defending that rule in court, where just last week a panel of majority Trump-appointed judges on the D.C. Circuit refused requests from industry groups and allied states to stay the rule. With this early win under our belts, we will continue to vigorously defend this rule and its implementation. 

CATF’s long-running work on power plant greenhouse gas emissions provides another example. For well over a decade, we have been at the forefront of developing the technical record needed to set stringent pollution control limits, including standards based on what can be achieved through application of carbon capture and storage. When the Supreme Court used the major questions doctrine to strike down an earlier regulation in 2022, we were undeterred. Together, our technical and legal experts helped build the foundation for new, robust standards that are squarely within the bounds set by the Supreme Court. Now that industry and states are challenging those rules, we’re once again in court alongside EPA defending the emission limits and their public health and climate benefits. 

With an uncertain future ahead of us, CATF’s work has only become more indispensable. CATF will fight to defend not only recent climate regulations, but the decades of environmental, public health, and energy rules designed to safeguard our futures that are now at risk. Our model — full engagement on policy development from start to finish, from proposal to the court room — can clear a path forward for the policies we need to meet the climate crisis head on. At CATF, our technical experts and legal advocates provide what we need now more than ever — collaboration each step of the way to build rules, regulations, and policies that can stand both the test of time and the courts.