‘A New Day’ at the Supreme Court? Justices Decline to Block an EPA Rule.

The conservative-majority Supreme Court has taken an aggressive stance against many environmental rules in recent years, but three small victories for regulators this month have left some analysts wondering whether a shift is underway.

The latest sign came Wednesday, when the justices declined to block the Environmental Protection Agency from imposing new restrictions on power-plant emissions while the rule is challenged in a lower court. The rule would require many coal- and gas-burning plants to capture up to 90% of greenhouse gas emissions by 2032.

Also this month, the court declined to act on two other emergency applications challenging EPA rules. Those centered on mercury, a neurotoxin, and methane, a potent greenhouse gas.

These recent decisions mark a significant departure from earlier this year, when the justices blocked the “good neighbor plan,” an EPA policy to reduce air pollution that drifts across state lines, while it’s challenged in a lower court.

That decision was criticized as a misapplication of the Supreme Court’s authority to intervene in lower-court cases on an emergency basis, using what is sometimes called a shadow docket, because the Supreme Court’s reasoning is rarely explained. The use of the emergency docket has expanded greatly in recent years and the court has granted several requests to temporarily block environmental rules while cases are pending.

Richard Lazarus, a professor of environmental law at Harvard University, said Wednesday’s action “may well be a major pivot point” away from the path the court set out on eight years ago, when it blocked President Barack Obama’s Clean Power Plan, which also regulated power plant emissions. It was the first time the Supreme Court had blocked an EPA air pollution rule before the full case had been heard by a lower court.

According to Lazarus, that prompted the adoption of the term “shadow docket.” Critics say that the use of the court’s authority to take emergency actions like these is inappropriate if overused, for instance in cases where emergency intervention isn’t necessary. Justice Samuel Alito has called the term misleading, saying it suggests the court is using sneaky or improper methods.

While it may still be too early to say a shift is, in fact, underway, Lazarus pointed to what he called the “rising influence” of Justice Amy Coney Barrett, who dissented when the court blocked another EPA rule on air pollution in June. While she is a conservative, she sided with the liberal justices in that decision.

“Her dissent in July appears now to be commanding a majority view,” Lazarus said. “One cannot fairly predict smooth sailing for environmental greenhouse gas regulations before the court, but it does seem to be a new day.”

Environmentalists hailed the court’s action Wednesday.

The decision was “a victory for common sense,” said Meredith Hankins, a senior lawyer at the Natural Resources Defense Council, adding that it “rejects the latest abuse of the Supreme Court’s shadow docket by industry and some state attorneys general.”

Sean H. Donahue, a lawyer representing the Environmental Defense Fund, which joined two of the cases in support of the EPA and submitted an amicus brief in the third, said Wednesday’s decision had come as a welcome surprise.

He said the use of emergency applications in environmental cases runs counter to the process set out in the Clean Air Act, the main law governing air quality in the United States. And in general, cases are usually decided on their merits in lower courts before advancing to the Supreme Court. “In environmental cases, it’s especially problematic because the cases tend to be legally complex,” he said of the use of emergency applications.

“It’s just very hard to do justice to that complexity in the accelerated proceedings in the Supreme Court,” he said. “There’s just every reason to think it’s a bad process for the court to be regularly involved in.”

Stephen Vladeck, a professor at Georgetown Law School and author of the book “The Shadow Docket,” cautioned against reading too much into a handful of cases with only limited explanation from the justices. Still, he noted that there was some concern that the court’s June decision, the one in which it had chosen to intervene and block an EPA rule, had signaled that it was “open season for these kinds of requests,” he said.

“Maybe the court had some hesitation about opening those floodgates,” he said.

The case the Supreme Court declined to intervene in this week is led by West Virginia, which still generates most of its electricity from coal, along with two dozen other states and their allies in industry. The plaintiffs argue that the EPA’s rule would force companies to adopt expensive new technology to capture carbon dioxide, a dangerous greenhouse gas that warms the world when released into the atmosphere.

They argue that the carbon capture technology couldn’t realistically be employed on such a large scale. That, they say, means the measure would force a broad shutdown of power plants that would be ruinous to the industry and to the people and businesses they supply with electricity. “Because the states and our residents are staring down economy-collapsing harms under this illegal and shortsighted rule, the Court should stop it now,” the plaintiffs said in a motion filed in May at the U.S. Court of Appeals for the District of Columbia Circuit.

The question of carbon-capture technology has provided common cause to some groups that are normally at opposite ends of the political spectrum. Some environmental groups have been sharply critical of carbon-capture technology and argue that it is being used to justify the continued use of fossil fuels.

Charles Slidders, a lawyer at the Center for International Environmental Law, called carbon capture and storage a “false solution” and said that it hasn’t been shown to work on a commercially viable large-scale basis. “The best system of emissions reduction is a reduction of emissions,” he said.

The plaintiffs in the West Virginia case made some of the same arguments, namely that carbon capture remains unproven at scale. The Biden administration has maintained that the EPA’s analysis concluded that carbon capture works.

West Virginia’s case remains pending in the district court.

In July, that court also denied the plaintiffs’ request to block the rule while the case proceeds, finding that there was no risk of immediate “irreparable harm” given that plants had years to comply with the rule. That’s what led the plaintiffs to bring their emergency application to block the rule to the Supreme Court, which on Wednesday came to the same conclusion.

Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, wrote that, in his view, the plaintiffs in the case had shown “a strong likelihood of success on the merits to at least some of their challenges.” But he wrote that there was no need to block the rule because the deadline to start compliance work is not until June. And if the plaintiffs lose at the lower court, they could ultimately end up back at the Supreme Court.

This article originally appeared in The New York Times.

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