Environmental victory for the Obama Administration highlights possible end to a conservative dominated Court

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Editor’s Note: The Campbell Law Observer recently held its write-on competition for the Spring 2016 semester. This article was awarded the highest overall score by our editorial staff.

Chief Justice John Roberts denied the request of twenty states to stay enforcement of the EPA’s “Mercury and Air Toxins Standards” pending future litigation on March 3, 2016.  The Supreme Court of the United States had recently allowed a similar stay request in a challenge to the EPA’s “Clean Air Plan,” decided 5-4 by the Court, but the March 3 decision came from Chief Justice Roberts alone in the wake of Justice Antonin Scalia’s recent death.  The Chief Justice’s refusal has been hailed as a significant victory for the Obama Administration’s environmental policy, and signals possible uncertainty among the conservative justices on the Supreme Court going forward.

In 2015 . . . the EPA instituted two initiatives, the Clean Power Plan and the Mercury and Air Toxins Standards, both meant to overhaul regulation of power plans in the United States.

The Court has previously ruled against EPA initiatives.  In 2015, with the Obama Administration’s guidance, the EPA instituted two initiatives, the Clean Power Plan and the Mercury and Air Toxins Standards, both meant to overhaul regulation of power plants in the United States.  The Clean Power Plan was meant to address climate change concerns by limiting power plants’ carbon emissions.  The Mercury and Air Toxins Standards addressed health concerns by limited emissions by power plants of toxic pollutants such as mercury.

A group of twenty states challenged the Clean Power Plan in Michigan v. Environmental Protection Agency.  Prior to consideration by the Supreme Court, the twenty states submitted a request to stay the Clean Power Plan, which was granted in a 5-4 decision by the Court.

In June of 2015, the Court held in another 5-4 decision that the Clean Power Plan violated the 1990 Clean Air Act by regulating emissions without first performing a cost-benefit analysis.  The Clean Air Act requires that regulations be “necessary and appropriate.”  Justice Scalia, writing for the majority, interpreted the Clean Air Act’s language to mean the EPA must perform a cost-benefit analysis of their regulations weighing health and environmental benefits against economic costs.

The decision in Michigan v. EPA seemed to suggest the Court would crack down on EPA emissions regulations if deemed too economically inefficient.  In the wake of the Michigan v. EPA decision, the EPA began a fact-finding study meant to analyze the costs and benefits of the Mercury and Air Toxins Standards.  The EPA intended to revise the standards to keep them from meeting the same fate as the Clean Power Plan, but kept enforcing the original standards while conducting their study.

The Chief Justice decided to consider the stay request on his own without the consideration of the full Court, and rejected the states’ request.

The twenty states from the Michigan v. EPA decision filed a stay request against the Mercury and Air Toxins Standards with Chief Justice Roberts, arguing that by continuing to enforce their original Mercury and Air Toxins Standards, the EPA was essentially undermining the Court’s decision.  The Chief Justice decided to consider the stay request on his own without the consideration of the full Court, and rejected the states’ request.  Chief Justice Roberts did not attach any opinion or reasoning to his decision as is normal with rejected stay requests.

Some may wonder how it is that Chief Justice Roberts can make this decision without the opinion of the other justices or even without issuing an opinion.  Stay requests to the Supreme Court are submitted to a single justice, who can decide the stay request without any input from other justices.  If unsatisfied with the outcome, the stay request may be resubmitted – although such resubmissions are generally unsuccessful.  Justices generally refer stay requests to the whole Court for a determination to head off any possible resubmissions.  For example, the stay request in Michigan v. EPA was submitted to all of the justices.  The Chief Justice’s decision to consider the request to stay the Mercury and Air Toxins Standards was highly unusually, but not unheard of.

The requests to stay the Clean Power Plan and the Mercury and Air Toxins Standards were two very similar issues with very different outcomes.  The most obvious change from the stay of the Clean Power Plan to Chief Justice Roberts’s refusal to stay the Mercury and Air Toxins Standards is the death of Justice Scalia.  With Justice Scalia, the request to stay the Clean Power Plan was considered by the whole Court, and decided with Scalia in the 5-4 majority.  Without Justice Scalia, any decision of the full Court, particularly on such a divisive issue, would likely be split 4-4 between the liberal and conservative blocs.  Chief Justice Roberts’s refusal could have taken into account the split, and strategically decided to avoid consideration by the whole Court as a result.

Even without strategically considering the Court’s current makeup, the Chief Justice’s decision on March 3 made sense.  The EPA was already well into its cost-benefit analysis of the Mercury and Air Toxins Standards, and is likely to implement the required changes in the coming months.

While the states argued that the loss in this case would be in the billions, the EPA suggested that losses would be minimal  . . .

Additionally, stays are generally only granted when there is some need to prevent extreme loss.  While the states argued that the loss in this case would be in the billions, the EPA suggested that losses would be minimal because most power plants have already updated their facilities to comply with the Mercury and Air Toxins Standards.  With the EPA essentially complying with the Michigan v. EPA decision and the Chief Justice likely determined that the losses would not be too significant, the decision here is not all that surprising.

Also not surprising about Chief Justice Roberts’s decision is the subtext of the shift in the Court itself.  Whereas the Court’s conservative majority was willing to stay an EPA program pending further litigation as recently as last year, they now must be more strategic in the decisions they make.  In this case, having hindered somewhat the Obama administration’s environmental policies in Michigan v. EPA, the Court can be satisfied with allowing the EPA to implement the cost benefit analysis required in the decision.

Until a new justice is appointed – and possibly even after that appointment – the conservative bloc is more vulnerable than it has been in over a decade.  Any 4-4 split would generally affirm the lower court’s decision without any precedential value.  The conservative justices are likely going to circle the wagons in the coming months and try not to lose in significant cases

[W]ith Chief Justice Roberts’s decision on March 3, the EPA can achieve a decrease in toxic emissions from power plants

One of the major platforms President Obama ran on both in 2008 and in 2012 was an effective environmental policy aimed at reducing emissions and limiting climate change.  When the Michigan v. EPA decision came out in 2015, it appeared as though one of the Obama Administration’s primary environmental initiatives would be severely hindered.  Realistically, without the Clean Power Plan’s limitations on carbon emissions, the fight against climate change is going to be significantly curtailed.

However, with Chief Justice Roberts’s decision on March 3, the EPA can achieve a decrease in toxic emissions from power plants.  While perhaps not the total decrease in emissions for which the Obama Administration hoped, this can be claimed as a victory for those tallying President Obama’s successes and failures in his eight years in office.

Whether the Chief Justice’s decision on March 3 was strategic or just common sense, it is now clear that the conservative bloc of which he is a member must be performing their own cost-benefit analyses in future cases.  What cases the Court takes, when the Court takes them, and how those cases are decided will be intriguing in the coming months, even as we await the appointment of a new justice.  In this case, the EPA and the Obama Administration won a victory and will be allowed to continue regulating mercury and other toxins in the air.