The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Among the cert petitions the justices will consider at tomorrow's conference are several that ask the Supreme Court to review the opinion by the U.S. Court of Appeals for the D.C. Circuit rejecting the Trump Administration's approach to the regulation of greenhouse gas emissions from power plants. (See, e.g., here and here.) These petitions were initially distributed for the Court's end-of-summer conference (aka, the "long conference"), but the Court took no action on them last week, prompting some speculation the justices are giving the case a more serious look.
The various petitions urge the Supreme Court to review and reject the D.C. Circuit's expansive interpretation of EPA authority to regulate greenhouse gases under the Section 111 of the Clean Air Act. Some argue the lower court's interpretation of the Act gives the EPA too much leeway. Others argue the court was wrong to accept that the EPA has any authority under Section 7411 (sometimes referred to as Section 111) to regulate greenhouse gas emissions from power plants at all (because of the way Section 7411 interacts with other portions of the Act). Correcting the D.C. Circuit's errors, they argue, is necessary to prevent the EPA from attempting to impose another round of costly regulations for which it lacks statutory authority. Clarifying the scope of Section 7411, they argue, would ensure that whatever the EPA does next is within the scope of its delegated authority. I also suspect some of the petitioners hope the justices remember that they stayed implementation of the Obama Administration's Clean Power Plan, and think the D.C. Circuit's decision points in the opposite direction.
The petitions seeking review of the D.C. Circuit's decision would seem to be longshots. While one consequence of rejecting the Trump Administration's Affordable Clean Energy (ACE) rule is the resurrection of the Obama Administration's Clean Power Plan, the Biden Administration has disclaimed any interest in reviving or enforcing the Obama EPA rule. Rather, as the Solicitor General notes in its brief opposing certiorari, the Court should wait to consider the relevant legal questions until the EPA puts forward a new regulation. From the SG's brief:
Petitioners challenge the Clean Power Plan's approach to regulating CO2 emissions from existing power plants. They argue that Section 7411 unambiguously forecloses EPA from relying on generation shifting as a component of the "best system of emission reduction." But the question whether the Clean Power Plan was lawful has no continuing practical significance, since that Plan is no longer in effect and EPA does not intend to resurrect it.
EPA instead intends to issue a new Section 7411(d) rule after taking into account all relevant considerations, including changes to the electricity sector that have occurred during the last several years. Petitioners urge this Court to grant review now to help guide the upcoming rulemaking, but that is little more than a request for an impermissible advisory opinion. Any further judicial clarification of the scope of EPA's authority under Section 7411(d) would more appropriately occur at the conclusion of the upcoming rulemaking, when the courts can review a concrete and considered EPA rule, rather than speculate as to the regulatory approaches the agency might take. In the meantime, the court of appeals' stay of its vacatur of the Clean Power Plan repeal ensures that petitioners will face no burdens from any Section 7411(d) regulation unless and until EPA promulgates a new rule.
In short, the SG (and those intervenors and amici on its side) are arguing that there is no reason for SCOTUS to intervene now because the EPA is not attempting to regulation greenhouse gases under Section 7411, has no interest in defending either ACE or the CPP, and there will be plenty of time for the Court to consider the scope of the EPA's regulatory authority if and when a new Section 7411 rule issued.
Given that the Supreme Court generally likes to err on the side of not accepting review, this would seem to be a strong argument against certiorari. And, if the justices wanted to hear the case, they could have granted certiorari last week. So what explains the relisting? Here are a few possibilities.
- The justices did not get through all the cases from the long conference or simply wanted more time to discuss this case given its size and complexity.
- The underlying issues are complicated and one or more justices wanted to make sure that there are no adverse consequences from denying review. In the past, the EPA has celebrated its ability to scare companies into complying with regulations pending judicial review, and one or more justices might want to be sure nothing of the sort is happening here.
- One or more justices is persuaded by the petitions for certiorari and is hoping to convince enough justices to grant the case.
- The Court is preparing to grant certiorari and, as has become a regular practice in the Roberts Court, the cases have been relisted so that the justices may discuss them again to be sure that a grant is proper.
- There are four votes to grant certiorari, but some amount of disagreement about the scope of the question(s) the justices wish to consider, so they are haggling or negotiating over the precise language of the question(s) they want the case(s) to present.
- There are not enough votes for certiorari, but one or more justices wanted to highlight these petitions because they expect the underlying issues to be back before the Court in due course, and want to flag the issues so that any future EPA rule under Section 7411 is subject to a stay, much like the CPP was.
We may not know why the cases were relisted, but we may know what the Court plans to do with these cases as early as tomorrow. If one or more of these petitions is granted, add another blockbuster to an already loaded Supreme Court term. And if they are all denied, that likely means the Court has simply postponed its consideration of Section 7411 to another time.