The Volokh Conspiracy

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What Is The Standard For A Stay? Moyle v. U.S. or Ohio v. EPA?

Like a good neighbor, State Farm is there.


On Thursday, the Supreme Court decided two cases that concerned when an emergency stay should be granted: Moyle v. United States and Ohio v. EPA. Reading these two cases gave me whiplash. In Moyle, Chief Justice Roberts and Justice Kavanaugh voted to dissolve a stay. And in Ohio, Chief Justice Roberts voted to grant a stay. In both cases, Justice Barrett would have denied emergency relief altogether. At least one member of the Court is consistent.

I've talked enough about the prematurely released Moyle opinion (1, 2, 3, 4, 5, 6). As best as I can tell, there were no meaningful changes made in the final version. That suggests this case was done in May, but was being held till the end of the term for unstated reasons. It was released on Thursday, perhaps, because the document was out and the Court wanted to limit damage. Ultimately, no harm, no foul.

In Ohio v. EPA, states and industry groups sought an emergency stay of the Good Neighbor Plan, which limits emissions. The Court split 5-4. Justice Gorsuch voted to grant the stay. Justice Barrett dissented, and was joined by Justices Sotomayor, Kagan, and Jackson. I saw some comments that this case split along gender lines, but I think that description doesn't do any work. Ohio v. EPA was a clear, and consistent manifestation of Justice Barrett's aversion to grant any sort of emergency relief. And the Court's progressives will gladly sign onto those criticisms of the shadow docket.

Justice Gorsuch's majority opinion needed five votes. And he twice favorably cited Justice Kavanaugh's Labrador concurrence–an opinion that Justice Barrett ignored in Moyle. This diplomatic gesture, if one was needed, likely helped bring Kavanaugh along. Gorsuch, citing Kavanaugh, explains that there are weighty harms on both sides of the ledger.

Like any other federal court faced with a stay request, we must provide the applicants with an answer—"grant or deny." Labrador v. Poe, 601 U. S. ___, ___ (2024) (KAVANAUGH, J., concurring in grant of stay) (slip op., at 2). . . .

When States and other parties seek to stay the enforcement of a federal regulation against them, often "the harms and equities [will be] very weighty on both sides." Labrador, 601 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 3). That is certainly the case here, for both sides have strong arguments with respect to the latter three Nken factors.

Next, Gorsuch, citing Chief Justice Roberts in Maryland v. King, explains that the state is always injured when its sovereign interests are impaired.

On one side of the ledger, the federal government points to the air-quality benefits its FIP offers downwind States. EPA Response 48–50. On the other side, the States observe that a FIP issued unlawfully (as they contend this one was) necessarily impairs their sovereign interests in regulating their own industries and citizens—interests the Act expressly recognizes. See Part I–A, supra; States' Application 24–26; Maryland v. King, 567 U. S. 1301, 1303 (2012) (ROBERTS, C. J., in chambers).

There is some tension here. In Moyle, Justice Barrett was willing to tolerate a partial impairment of the state's interest–the "injunction will not stop Idaho from enforcing its law in the vast majority of circumstances." Roberts and Kavanaugh joined that opinion. By contrast, in dissent, Justice Alito cited Roberts's Maryland opinion as support for state standing. Again, Barrett is being consistent between Moyle and Ohio. Roberts and Kavanaugh are at odds with themselves.

Justice Gorsuch concludes with what I think is the most important aspect of Kavanaugh's Labrador opinion: in an emergency posture, an application for a stay will ultimately turn on the likelihood of success. The Justices can decide early on who is likely to prevail on the merits, and that determination will usually be sufficient:

Because each side has strong arguments about the harms they face and equities involved, our resolution of these stay requests ultimately turns on the merits and the question who is likely to prevail at the end of this litigation. See Nken, 556 U. S., at 434; Labrador, 601 U. S., at ___ (opinion of KAVANAUGH, J.) (slip op., at 4).

Kavanaugh's analysis is now the opinion of the Court. Moyle had only three votes. Kudos to Kavanaugh.

Justice Barrett's dissent was peak Barrett. Her introduction lays out the risks of granting "emergency relief" in a "fact-intensive" case requires meeting "stringent conditions."

The Court today enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits. In so doing, the Court grants emergency relief in a fact-intensive and highly technical case without fully engaging with both the relevant law and the voluminous record. While the Court suggests that the EPA failed to explain itself sufficiently in response to comments, this theory must surmount sizable procedural obstacles and contrary record evidence. Applicants therefore cannot satisfy the stringent conditions for relief in this posture.

For Barrett, lawyers never seem to meet the burden she identifies.

Barrett also reaffirms her Does v. Mills test, which focuses on cert-worthiness.

To obtain emergency relief, applicants must, at a mini-mum, show that they are likely to succeed on the merits, that they will be irreparably injured absent a stay, and that the balance of the equities favors them. Nken v. Holder, 556 U. S. 418, 425–426 (2009). Moreover, we should grant relief only if we would be likely to grant certiorari were the applicants' case to come to us in the usual course. See Does 1–3 v. Mills, 595 U. S. ___, ___ (2021) (BARRETT, J., concur-ring in denial of application for injunctive relief ); Hollingsworth v. Perry, 558 U. S. 183, 190 (2010) (per curiam). In my view, the applicants cannot satisfy the stay factors. Most significantly, they have not shown a likelihood of suc-cess on the merits.

In this case, five justices voted to grant a stay. They necessarily thought the case was cert-worthy. Only the dissenters thought the case was not cert-worthy. The Does v. Mills test only makes sense if a single Justices is acting in chambers to predict whether the full Court is likely to grant cert. But once a full vote is taken, the cert-worthiness standard boils down to what an individual Justices thinks of this case. Justice Barrett really needs to let this standard go. It doesn't accomplish what she seems to think it accomplishes. In a case like this, Mills adds nothing to the equation.

The rest of the opinion is putting the lawyers for the applicants to an extremely high burden. A comment did not raise a point with "reasonable specificity." By contrast, EPA did just enough to survive review:

Given the explanations and state-agnostic methodology apparent in the final rule and its supporting documentation—and the paucity of comments specifically raising the issue—EPA may well have done enough to justify its plan's severability.

Barrett also accuses the majority of "cherry-picking" from the record:

The Court, perhaps recognizing the problem that the FIP's seemingly state-agnostic methodology poses for its theory, throws at the wall a cherry-picked assortment of EPA statements mentioning state data. See ante, at 5–6, 19, n. 14. None stick.

Finally, echoing a point from Murthy, Barrett charges the conservatives with making up an argument that does not really appear in the briefs:

But it is the Court that goes out of its way to develop a failure-to-explain theory largely absent from applicants' briefs. One can search diligently in the hundreds of pages of applicants' opening briefs for the Court's theory—that EPA failed to explain in its final rule why the FIP's cost-effectiveness thresholds for imposing emissions limits do not shift with a different mix of States—and be left wondering where the Court found it. That theory appears not to have crystallized until oral argument, during which counsel for the state ap-plicants struggled to locate it in the States' brief. Tr. of Oral Arg. 11–12. Consider just one illustrative example. Given the importance to the Court's theory of how the "knee in the curve" might change with different States, see ante, at 6, 7, and n. 4, 12, one might expect to find some mention of that idea in applicants' briefs. One would be wrong.

Indeed, Barrett is willing to cut the EPA some slack because they were forced to prepare their brief so quickly:

Given that applicants' theory has evolved throughout the course of this litigation, we can hardly fault EPA for failing to raise every potentially meritorious defense in its response brief. That is particularly true given the compressed briefing schedule in this litigation's emergency posture: The Court gave EPA less than two weeks to respond to multiple applications raising a host of general and industry-specific technical challenges, filed less than a week earlier. Even still, EPA raised §7607(d)(7)(B)'s procedural bar.

Is that a new argument against the shadow docket? Should the government be excused from raising an argument because the briefing schedule was too short? I suspect this line will be cited in motions in opposition to briefing schedules.

In the end, Barrett makes a "tentative" predictive judgment that the applicants are unlikely to succeed on the merits.

Even putting aside the expedited briefing schedule and the limited discussion of the Court's theory in applicants' briefs, applicants bear the burden in seeking emergency relief to show a likelihood of success on the merits. . . . . Given the emergency posture of this litigation, my views on the merits of the failure-to-explain objection and the application of the Clean Air Act's procedural bar and harmless-error rule are tentative. But even a tentative ad-verse conclusion can undermine applicants' likelihood of success. And applicants, to prevail, must run the table; they face the daunting task of surmounting all of these sig-nificant obstacles. They are unlikely to succeed.

I think it is unlikely that this tentative prediction will change. Which again proves why Justice Kavanaugh is right: the most important, and dispositive, factor in a stay request is likelihood of success on the merits.

Justice Barrett faults the majority for granting relief in a case that will be pending for years:

The Court, seizing on a barely briefed failure-to-explain theory, grants relief anyway. It enjoins the Good Neighbor Plan's enforcement against any state or industry applicant pending review in the D. C. Circuit and any petition for certiorari. Ante, at 19. . . . Rather than require this years-long exercise in futility, the equities counsel restraint.

Know who else issued such a ruling? Justice Scalia's last official act on the Court before his death was to grant a stay in the Clean Power Plan case. That stay lasted well past Scalia's natural life.

Barrett closes with a nod again to her Does v. Mills opinion:

Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. See Does 1–3, 595 U. S., at ___ (opinion of BARRETT, J.). Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal ques-tions. I respectfully dissent.

I'll give some credit to Barrett. She is being consistent–consistently opposed to granting relief on the emergency docket, and consistently holding all private lawyers to exceedingly demanding standards. Consistency is good. But only if those consistent rulings are what the law demands.

Finally, in the interest of all law review student note writers, you're welcome to use this title:

Like a good neighbor, State Farm is there.