Reading the SCOTUS tea leaves on EPA's mercury rule

|The Volokh Conspiracy |

Only 20 cases are left to be decided from the Supreme Court's current term. Opinions in these cases are expected before the end of June. Among those yet to be decided is this term's one big environmental case, Michigan v. EPA, a challenge to the lawfulness of the EPA's decision to regulate mercury emissions from power plants. According to industry and state petitioners, the EPA unreasonably refused to consider the costs of adopting this rule to control mercury emissions from power plants. The EPA, and the state and environmental group respondents on its side, obviously disagree.

Given that the U.S. Court of Appeals for the D.C. Circuit had upheld the EPA's decision, environmentalists took the Supreme Court's decision to hear the case as an ominous sign. At oral argument in March, however, the EPA's prospects looked a little bit brighter. How this case will come out is anyone's call.

Harvard Law School professor Richard Lazarus, one of the nation's preeminent environmental law scholars, read the Michigan "tea leaves" in a post to the envlawprofessors e-mail list serv. I am reposting his thoughts with permission.

The earliest the opinion could come down is the Court's next opinion day this coming Monday, June 15, though I suspect it may take a bit longer to get this particular one out.

Here's what we know.

1. Very unlikely that any of the following Justices are writing the opinion for the Court. The Chief Justice or Justices Kennedy, Thomas, Ginsburg, or Alito. For that same reasons, the most likely authors are Justices Scalia, Breyer, Sotomayor, or Kagan. No rocket science here. The Court heard nine cases during the March session when Michigan v. EPA was argued and presumptively each Justice will be assigned one opinion to write from that session, and the four Justices outlined above have not yet written a March session case.

2. If the opinion assignment were a matter of random probabilities, then this would indeed be good news for EPA: likely a 75% chance of winning, given that only Scalia seems likely to opposed to EPA in the case. While there was in theory reason to be concerned about Breyer going in to the argument, given his love of cost benefit analysis, I was left with the distinct impression after the argument that Breyer was in EPA's camp on this one. Kagan and Sotomayor clearly are. But, alas for the Agency, that is not how opinion assignments work. Still the visuals should give the Agency some reason to be hopeful even if for no compelling statistical reason.

3. Burying a bit deeper into the four remaining cases to be decided from March and the four Justices, there is no one Justice that can easily be eliminated from the possible lineup. Certainly, Scalia , Breyer, and Kagan, would love to write Michigan, and Sotomayor was very active at argument, so no hints there. Nor do any of the other three cases, Walker, Brumfeld, or Kimble have a clear leaning to any one of the four based on the question presented or what happened at oral argument in those cases. Walker is the highest profile case of the bunch involving the constitutionality of a Texas law that restricts specialty license plates, Brumfeld is a capital case concerning the right of a defendant to have a separate state hearing on whether a mental disability prevents the defendant's execution under Atkins, and Kimble is a Marvel Comics case involving patent royalties for some kind of toy that shoots strings. I expect either Sotomayor or Kagan has the Marvel toy case, only because they are the junior Justices and therefore, with apologies to fans of Marvel comic toys and dogs, are more likely to get what the Justices' clerks often refer to as the "dog" assignments of the Term.

4. My own guess nonetheless right now and it is no more than that is that either Kagan or Scalia has it. Scalia would no doubt love to exact a bit more revenge for his EME Homer City dissent with a majority opinion in this one. Short of that, he will clearly be writing a dissent. Kagan was spectacular at the oral argument in Michigan and I could well imagine Kennedy assigning it to Kagan, notwithstanding her junior Justice status, or the Chief's doing so if he were supplying a sixth vote for EPA and therefore possessed opinion assignment authority for an opinion in favor of EPA (otherwise he would be the one giving it to Scalia). The Chief is clearly a fan of Kagan's abilities as a Justice. Kagan would also be the dream opinion writer for EPA on this one, and for law teachers and environmental law casebook writers too.

5. Even if Michigan is not decided this coming Monday, we are likely then to have more grist for the Tea Leaf reading mill. Should the Court decide Walker, Brumfeld, or Kimble instead, you can fairly scratch off our gang of four any Justice who writes that opinion. Not a sure thing, of course, but a good bet.