{"id":4039,"date":"2024-06-24T16:59:40","date_gmt":"2024-06-24T20:59:40","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jol\/?p=4039"},"modified":"2026-01-01T16:19:29","modified_gmt":"2026-01-01T21:19:29","slug":"the-bonfire-of-the-equities-judicial-stays-of-federal-environmental-regulations","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jol\/2024\/06\/24\/the-bonfire-of-the-equities-judicial-stays-of-federal-environmental-regulations\/","title":{"rendered":"The Bonfire of the Equities: Judicial Stays of Federal Environmental Regulations"},"content":{"rendered":"

Sean H. Donahue & Megan M. Herzog [*]<\/a>\u00a0<\/span><\/strong><\/p>\n

\u00a0<\/p>\n

I. Introduction<\/span><\/p>\n

The Supreme Court\u2019s emergency docket is now a central part of federal environmental law despite being completely absent just ten years ago. As Professor Stephen Vladeck and others have documented, the Court has entertained and granted emergency relief, such as stays or injunctions of regulations and lower court rulings, far more commonly in recent years than at any other time in its history.1<\/a><\/sup>See <\/em>Stephen Vladeck, The Shadow Docket<\/span> 12, 17 (2023); see also generally, e.g.<\/em>, Edward L. Pickup & Hannah L. Templin, Emergency-Docket Experiments<\/em>, 98 Notre Dame L. Rev.<\/span> Reflection 1 (2022); Texas\u2019s Unconstitutional Abortion Ban and the Role of the Shadow Docket<\/em>: Hearing Before the Senate Comm. on the Judiciary<\/em>, 117th Cong. (Sept. 29, 2021) (Testimony of Stephen Vladeck); The Supreme Court\u2019s Shadow Docket: Hearing Before the Subcomm. on Courts, Intellectual Property, and the Internet of the House Comm. on the Judiciary<\/em>, 117th Cong. (Feb. 18, 2021) (Testimony of Loren L. AliKhan); Trevor N. McFadden & Vetan Kapoor, The Precedential Effects of the Supreme Court\u2019s Emergency Stays<\/em>, 44 Harv. J.L. & Pub.<\/span> Pol\u2019y<\/span> 827 (2021); William Baude, Foreword: The Supreme Court\u2019s Shadow Docket<\/em>, 9 NYU J.L. & Liberty<\/span> 1 (2015).<\/span> A notable number of the Court\u2019s recent high-profile emergency docket actions have involved rulemakings by the Environmental Protection Agency (EPA), for instance: the historic order blocking the Obama EPA\u2019s \u201cClean Power Plan,\u201d devised to fulfill the Agency\u2019s Clean Air Act\u2019s command to curb climate pollution by fossil-fuel power plants\u2014the Court\u2019s first-ever emergency injunction of a federal rulemaking before any merits decision by a lower court;2<\/a><\/sup>West Virginia v. EPA, 577 U.S. 1126, 1126 (2016); see also <\/em>Adam Liptak & Coral Davenport, Supreme Court Blocks Obama\u2019s Efforts to Regulate Coal Emissions, N.Y. TIMES (Feb. 9, 2016). <\/span> the Court\u2019s stay of a district court order vacating the Trump EPA\u2019s controversial revisions of Clean Water Act regulations governing States\u2019 review of projects affecting their waters;3<\/a><\/sup>Louisiana v. American Rivers, 142 S. Ct. 1347, 1347 (2022) (mem.).<\/span> and, most recently, another Clean Air Act case, Ohio v. EPA<\/em>, in which the Court, after months of considering industry and State applications to halt implementation of the Biden EPA\u2019s \u201cGood Neighbor Rule,\u201d limiting cross-state ozone pollution, decided to hear oral argument4<\/a><\/sup>See <\/em>Ohio v. EPA, 144 S. Ct. 538, 539, No. 23A349 (2023) (mem.) (ordering oral argument).<\/span>\u2014a step the Court has taken only three times in the last half-century.5<\/a><\/sup>See <\/em>Stephen Vladeck, Making Sense of the \u201cGood Neighbor\u201d Applications<\/em>, One First (Feb. 19, 2024), https:\/\/stevevladeck.substack.com\/p\/67-making-sense-of-the-good-neighbor [https:\/\/perma.cc\/9CYT-PUQJ].<\/span> And beyond these particular disputes, the Court\u2019s greater receptivity to emergency applications seeking to halt federal executive actions implies a looming threat to environmental regulations.6<\/a><\/sup>See, e.g.<\/em>, Alabama Ass\u2019n of Realtors v. Dep\u2019t of Health & Hum. Servs.<\/em>, 594 U.S. 758, 764 (2021) (per curiam) (granting application to stay pending judicial review nationwide eviction moratorium implemented in response to COVID-19 pandemic); Nat\u2019l Fed\u2019n of Indep. Bus. v. Occupational Safety & Health Admin., 595 U.S. 109, 120\u201321 (2022) (per curiam) (granting application to stay pending judicial review OSHA\u2019s temporary standard mandating that certain employers require COVID-19 vaccination in certain circumstances). <\/span> Reading those signals, all the key players in the federal environmental policymaking landscape\u2014from agency staff developing regulations, to regulated entities, advocates seeking to shape agency decisions, reporters covering environmental policy, and students and scholars\u2014now must take into consideration the real possibility that the Supreme Court will block significant national pollution-control and public-health regulations shortly after the ink dries in the Federal Register.<\/p>\n

The ascendence of the Supreme Court\u2019s emergency docket in environmental cases is troubling. In general, the Court\u2019s increasing willingness to halt agency action in emergency orders raises constitutional, statutory, judicial-administration, and institutional-legitimacy concerns;7<\/a><\/sup>See <\/em>Vladeck<\/span>, supra <\/em>note 1, at 18\u201325.<\/span> and in the complex rulemaking challenges that characterize much of federal environmental law, basic problems of institutional capacity compound those concerns. Federal environmental cases tend to involve: (1) sprawling records that require substantial time for a reviewing judicial panel to absorb; (2) factual complexities unique to the particular regulatory regime, such as highly technical, industry-specific problems and solution sets, intricate regulatory histories, and abstruse analytical methodologies; (3) a large number of legal issues that often have not previously been addressed by more than one court of appeals; (4) a diversity of interested parties, many of whom are not before the court (including members of the public who stand to benefit from healthier air, water, ecosystems, and products, as well as businesses with high-polluting, underregulated competitors); and (5) costs to regulated industry that are readily stated in dollars, but benefits (such as fewer asthma attacks, higher IQ, or lower cancer risk) that, while recognized and valued by Congress, are difficult to value in monetary terms. Because of these features, emergency applications seeking to block important environmental regulatory programs tend to implicate the Supreme Court\u2019s institutional weaknesses.8<\/a><\/sup>See infra <\/em>Section II.B. <\/span><\/p>\n

One response to these challenges might be for the Supreme Court to manage its emergency docket so as to avoid reliance on its own fact-finding. For example, the Court could refuse to award relief not supported by explicit factual findings from a lower court and remand cases for such fact-finding. Or the Court could, in minimalist and passively virtuous fashion, reaffirm that it will seldom disturb lower courts\u2019 rulings on preliminary relief in the absence of a well-defined and important legal issue that likely will warrant a grant of certiorari.9<\/a><\/sup>See generally<\/em> Note, The Role of Certiorari in Emergency Relief<\/em>, 137 Harv. L. Rev<\/span>. 1951 (2024) (reviewing and contrasting the tests for stays and injunctions in the Supreme Court, and the relevance of certworthiness); see also <\/em>S. Ct. R. 10 (considerations governing certiorari review). On the Court\u2019s venerable history of controlling its workload through interpretation of jurisdictional grants, see<\/em> Vladeck<\/span>, supra <\/em>note 1, at 27\u201392. <\/span> That approach could find support in dozens of in-chambers opinions and merits cases emphasizing the extraordinary character of emergency relief\u2014particularly after a lower court has denied such relief.10<\/a><\/sup>See infra <\/em>notes 33 & 34; see also <\/em>Note, Halting Administrative Action in the Supreme Court<\/em>, 137 Harv. L. Rev<\/span>. 2016, 2022 n.42 (2024) (collecting cases). <\/span> And one might expect that the Court would, for its own reasons, seek to discourage emergency applications. Among other drawbacks, emergency applications delay regular adjudication of cases in lower courts and take time away from the Court\u2019s principal responsibility: deciding, based on full briefing and argument, the merits of legal questions presented in cases\u2014principally \u201c[f]inal judgments\u201d of federal appellate and state high courts11<\/a><\/sup>28 U.S.C. \u00a7 1257 (state courts certiorari review); see also id. <\/em>\u00a7 1254 (courts of appeals certiorari review).<\/span>\u2014that it has accepted for its plenary review docket.12<\/a><\/sup>For instance, in recent public remarks, Justices Thomas and Kavanaugh both expressed concern that the recent increase in emergency applications is putting stress on the Court and interfering with management of its merits docket. See <\/em>Ryan Autullo & Chris Marr, Kavanaugh, Thomas Raise Concerns Over Shadow Docket Pressure (2)<\/em>, Bloomberg Law, May 10, 2024, https:\/\/news.bloomberglaw.com\/litigation\/kavanaugh-laments-pressure-shadow-docket-puts-on-supreme-court [https:\/\/perma.cc\/4WPE-4DYT]. <\/span><\/p>\n

But there are signs that the Court is not trending in that direction. Quite the opposite. The Court appears to be remolding the traditional standard for emergency relief by erasing the requirement that the equities of granting a stay must clearly favor the applicant.13<\/a><\/sup>See infra <\/em>Section II.A. <\/span> For instance, in Justice Kavanaugh\u2019s recent concurrence in Labrador v. Poe<\/em>,14<\/a><\/sup>144 S. Ct. 921 (2024) (mem.).<\/span> which Justice Barrett joined, he opined that when there are applications to stay \u201cimportant new laws\u201d like national environmental regulations, the \u201charms and equities are very weighty on both sides.\u201d15<\/a><\/sup>Id.<\/em> at 929 (2024) (Kavanaugh, J., concurring in the grant of stay). <\/span> \u201cIn those cases,\u201d he continued, \u201cthis Court has little choice but to decide the emergency application by assessing likelihood of success on the merits.\u201d16<\/a><\/sup>Id.<\/em><\/span><\/p>\n

Such an approach to the equities of emergency applications, if adopted more broadly, could pose a major impediment to the administration of laws that protect the public\u2019s health, safety, and other welfare interests. In many circumstances, it is economically rational for an industry facing regulations that would require new capital expenditures or adversely affect its profit-making to seek preliminary injunctive relief, regardless of the likelihood the challenged rule ultimately will be upheld. If the existence of at least superficially \u201cweighty\u201d harms \u201con both sides\u201d of a case is enough to warrant a Supreme Court ruling reflecting the Justices\u2019 analysis of the merits, the Court is likely to see emergency applications all the time. For unlike certiorari petitioners, who must overcome long odds to get the Court to exercise its discretion to take up their cases, applicants on the emergency docket can wield a rule\u2019s wide-ranging costs and benefits to force a circuit Justice, or the whole Court, to rule preliminarily on the merits of a suite of legal issues\u2014without regard to the multiplicity of factors that would render cases uncertworthy.17<\/a><\/sup>See <\/em>S. Ct. R. 10.<\/span><\/p>\n

Combined with new judicial trends toward non-deferential review of agency decisions,18<\/a><\/sup>See, e.g.<\/em>, West Virginia v. EPA, 597 U.S. 697, 722 (2022) (holding that in certain extraordinary cases, the major questions doctrine requires agencies to point to clear congressional authorization for its action); Loper Bright Enterprises v. Raimondo, 143 S. Ct. 2429 (2023) (mem.) (granting certiorari to review the scope of judicial deference to agency statutory interpretations); Relentless v. Department of Commerce, 144 S. Ct. 325 (2023) (mem.) (same). <\/span> Supreme Court emergency intervention might come to resemble near-automatic merits review of important administrative regulations\u2014and even toward a new norm that no Executive Branch rules implementing statutes are really law until the Supreme Court says so. Such a regime would seem to defy venerable understandings of the relationships among the branches, as well as constitutional and statutory limits on the Court\u2019s jurisdiction. The All Writs Act limits the Court to granting emergency injunctions \u201cin aid of [its appellate<\/em>] jurisdiction\u201d and only if consistent with traditional equitable standards,19<\/a><\/sup>28 U.S.C. \u00a7\u20091651(a) (authorizing the Court to \u201cissue all writs necessary or appropriate in aid of [its] jurisdiction and agreeable to the usages and principles of law\u201d); see also<\/em> U.S. Const.<\/span> art. III, \u00a7\u20092, cl. 2 (excepting the narrow categories of original jurisdiction cases, \u201cthe supreme Court shall have appellate Jurisdiction\u201d).<\/span> which limited emergency relief to \u201cextraordinary cases\u201d20<\/a><\/sup>Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (quoting Rostker v. Goldberg,<\/em> 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers)). <\/span> where the likelihood of irreparable harm to the applicant \u201cclearly exceed[s]\u201d harm to others from an injunction.21<\/a><\/sup>Barnes v. E-Sys., Inc. Grp. Hosp. Med. & Surgical Ins. Plan, 501 U.S. 1301, 1305 (1991) (Scalia, J., in chambers).<\/span><\/p>\n

A regime of preliminary Supreme Court merits review in \u201cimportant\u201d regulatory cases, available as of right to any party that has failed to secure an injunction from a lower tribunal, also would seem inconsistent with the role of Congress\u2019s designated court of first instance review. Many federal environmental statutes direct challenges to agency regulations to the courts of appeals, and in some instances, to the D.C. Circuit exclusively.22<\/a><\/sup>See, e.g.<\/em>, 42 U.S.C. \u00a7 7607(b), (d) (Clean Air Act judicial review provisions); 33 U.S.C. \u00a7 1369(b) (Clean Water Act judicial review provision); 15 U.S.C. \u00a7 2618 (Toxic Substances Control Act judicial review provision); 15 U.S.C. \u00a7 717r(b), (d) (Natural Gas Act judicial review provisions).<\/span> In some cases, those statutes provide for a highly structured judicial review process that allows all of the parties injured by a rule (and, often, beneficiaries who believe it should have been more far-reaching) to contest it in one consolidated mega-proceeding, subject to limitations designed to protect these massive agency undertakings from being lightly disturbed.23<\/a><\/sup>See, e.g.<\/em>, 42 U.S.C. \u00a7 7607(b), (d) (in certain challenges to Clean Air Act rulemaking, establishing an administrative exhaustion requirement, barring collateral attacks, limiting the duration of any agency stays pending reconsideration, and setting a strong harmless error standard for procedural errors).<\/span> Supreme Court intervention before the statutorily designated court has an opportunity to winnow the record and decide the merits would short-circuit this process, especially since a doctrinal shift toward treating the equities as offsetting would mean that a grant or denial of an application is very likely an expression of the Court\u2019s views on the merits.24<\/a><\/sup>Historically, the Court recognized significant distinctions between the Justices\u2019 decisions on preliminary relief and the Court\u2019s merits decisions. See, e.g.<\/em>, Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 721 n.10 (2007) (chastising parties for relying on an in-chambers opinion denying a stay application, and distinguishing \u201c[t]he propriety of preliminary relief\u201d from \u201cresolution of the merits\u201d). But recently, the Court has appeared to treat as precedential the analysis of likely merits success in certain of its decisions granting emergency relief by citing those orders in subsequent decisions in other cases, including merits-docket opinions (particularly as to the major questions doctrine). See, e.g.<\/em>, Biden v. Nebraska, 143 S. Ct. 2355, 2372\u201373 (2023) (citing Alabama Ass\u2019n of Realtors v. DHHS, 594 U.S. 758, 764 (2021) (per curiam)); West Virginia v. EPA, 597 U.S. 697, 700 (2022) (citing opinions regarding emergency relief in Alabama Ass\u2019n of Realtors <\/em>and NFIB v. OSHA, 595 U.S. 109 (2022) (per curiam) as \u201c[p]recedent\u201d to support application of the major questions doctrine). See also <\/em>Labrador v. Poe, 144 S. Ct. 921, 933\u201334 (2024) (Kavanaugh, J., concurring in grant of stay) (\u201cA written opinion by this Court assessing likelihood of success on the merits at a preliminary stage can create a lock-in effect because of the opinion\u2019s potential vertical precedential effect (de jure or de facto<\/em>)\u201d).<\/span> A related concern is that the Supreme Court is fundamentally predisposed and conditioned to reach merits questions in cases where it grants review; if the Court is also reflexively deciding more preliminary relief applications with quick \u201clikelihood of success\u201d determinations, it might fail to give attention to mundane but important procedural issues like administrative exhaustion that Congress deemed important, or to take account of the likely final relief\u2014such as whether, even if the applicant were to succeed on the merits, the challenged rule should be remanded without vacatur.25<\/a><\/sup>See, e.g.<\/em>, Allied-Signal, Inc. v. U.S. Nuclear Regul. Comm\u2019n, 988 F.2d 146, 150\u00ac\u201351 (D.C. Cir. 1993) (remand without vacatur standard). <\/span> That regime is not what Congress intended in establishing carefully wrought and detailed judicial-review regimes for environmental laws. Neither does such a regime seem workable for carrying out important statutory programs.<\/p>\n

The Supreme Court can still correct course, and we think it should for all the above reasons; but we leave to others to vet the various strategies for persuading it to return to a more restrained approach to emergency relief. Here, we offer some practical thoughts for lower courts, lawmakers, agencies, and other litigants who must adjust to new emergency docket trends in the context of national regulatory programs. First, we review concerning trends in the Court\u2019s approach to the equities of preliminary relief and use examples from federal environmental cases to elucidate the importance of careful equitable balancing.26<\/a><\/sup>See infra <\/em>Part II.<\/span> Then we offer some initial recommendations on how lower courts could adjust to a regime in which the Court is willing to engage early and aggressively in rulemaking review cases; how advocates might take account of these new realities; and how lawmakers and rule-drafters might address the issue.27<\/a><\/sup>See infra <\/em>Part III.<\/span><\/p>\n

We are hardly disinterested observers. Both of us have been involved in several of the cases we discuss here.28<\/a><\/sup>Both of us represent Environmental Defense Fund (EDF), a respondent-intervenor in the pending Good Neighbor Rule cases (Utah v. EPA, No. 23-1157 (D.C. Cir.); Ohio v. EPA, No. 23A349 (U.S.)); our firm represents respondent-intervenor EDF in the pending Oil and Gas Methane Rule litigation discussed below (Oklahoma v. EPA, No. 24-1054 (D.C. Cir.)); and Donahue represented respondent-intervenor EDF throughout the Clean Power Plan litigation, including the stay proceedings, and Herzog represented amici curiae in support of EPA on the merits (West Virginia v. EPA, No. 15-1363 (D.C. Cir.); No. 15A773 (U.S.)).<\/span> While our more typical posture has involved defending federal environmental rules against emergency motions from state attorneys general and industry, we have occasionally been in the opposite posture, representing environmental interests seeking to halt agency action.29<\/a><\/sup>See, e.g.<\/em>, Order, Environmental Defense Fund v. EPA, No. 18-1190 (D.C. Cir. July 18, 2018), Doc. 1741224 (D.C. Circuit administrative stay blocking challenged \u201cnon-enforcement policy\u201d relating to ultra-high-emitting \u201cglider trucks\u201d); Gregory Wallace, EPA Reverses Pruitt-Era Rule on Glider Truck Emissions<\/em>, CNN Politics<\/span>, July 28, 2018, https:\/\/www.cnn.com\/2018\/07\/27\/politics\/epa-scott-pruitt-glider-trucks\/index.html [https:\/\/perma.cc\/4H5T-PZBX] (noting that agency abandoned non-enforcement policy after court entered administrative stay); Clean Air Council v. Pruitt, 862 F.3d 1, 14 (D.C. Cir. 2017) (on motion for stay or summary vacatur, vacating agency-imposed stay of Clean Air Act regulation). Donahue was co-counsel for EDF in these cases.<\/span> We agree that courts\u2019 ability to intervene early in litigation has a place in an orderly and fair system of environmental law. But as we explain here, we think current trends threaten to subvert those ends.<\/p>\n

II. The Supreme Court\u2019s Evolving Approach to the Equities of Preliminary Relief<\/span><\/p>\n

The Supreme Court appears to be changing its approach to consideration of the equities on its emergency docket. The traditional standard requires all federal courts to examine four factors in deciding whether to grant preliminary relief\u2014\u201c(1) whether the stay applicant has made a strong showing that [it] is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.\u201d30<\/a><\/sup>Nken v. Holder, 556 U.S. 418, 434 (2009) (affirming lower-court stay standard); see also <\/em>Winter v. Natural Resources Defense Council, Inc.<\/em>, 555 U.S. 7, 20 (2008) (affirming substantially similar preliminary injunction standard); Hollingsworth v. Perry, 558 U.S. 183, 190 (2010) (per curiam) (affirming the Supreme Court\u2019s stay standard, which also includes consideration of certworthiness).<\/em> <\/span> When the government is the opposing party, the final two factors are said to merge.31<\/a><\/sup>Nken<\/em>, 556 U.S. at 435. <\/span> Preliminary relief is \u201cnever awarded as of right;\u201d32<\/a><\/sup>Winter<\/em>, 555 U.S. at 25.<\/span> even if a movant faces irreparable injury, a stay is supposed to be \u201cextraordinary\u201d relief.33<\/a><\/sup>Williams v. Zbaraz, 442 U.S. 1309, 1311 (1979) (Stevens, J., in chambers); see also <\/em>Virginia Petroleum Jobbers Ass\u2019n v. FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam).<\/span> Decades of decisions and in-chambers opinions embraced a particularly demanding standard for emergency relief from the Supreme Court.34<\/a><\/sup>See, e.g.<\/em>, S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613 (2020) (mem.) (Roberts, C.J., concurring in denial of application for injunctive relief) (\u201cemergency relief is appropriate only \u201cwhere \u2018the legal rights at issues are indisputably clear\u2019 and even then, \u2018sparingly and only in the most critical and exigent circumstances\u2019\u201d) (quoting Stephen M. Shapiro et al., Supreme Court Practice<\/span> \u00a7 17.4 (11th ed. 2019)); Conkright v. Frommert, 556 U.S. 1401, 1402 (2009) (Ginsburg, J., in chambers) (\u201cDenial of \u2026 stay applications is the norm; relief is granted only in \u2018extraordinary cases\u2019\u201d) (quoting Rostker v. Goldberg,<\/em> 448 U.S. 1306, 1308 (1980) (Brennan, J., in chambers)). <\/span><\/p>\n

In practice, however, Supreme Court stays are seemingly becoming decreasingly \u201cextraordinary\u201d\u2014especially where the applicant seeks to halt a federal regulatory program.35<\/a><\/sup>See generally <\/em>Vladeck<\/span>, supra<\/em> note 1.<\/span> Though not the sole cause of this phenomenon, recent shifts in the Court\u2019s approach to analyzing irreparable injury and balancing the equities of a stay appears to be increasing the probability that the Court will stay federal regulations, as well as encouraging, cyclically, more stay applications. This should be a cause for concern for anyone who supports implementation of national regulatory programs\u2014particularly new social-welfare or public-health rules with nationwide scope and broad public benefits.<\/p>\n

Here, we discuss two interrelated facets of the problem facing national rulemaking cases on the Court\u2019s emergency docket: (1) the Court\u2019s abruptly evolving approach to balancing the equities of emergency relief, and particularly to comparing alleged harms to applicants, respondents, other parties, and the public, and (2) the Court\u2019s limited institutional capacity for the fact-finding essential to that task.<\/p>\n

A. Vanishing Equities<\/em><\/p>\n

Equitable balancing ensures that emergency applications do not regularly turn into preliminary, rushed consideration of the unfiltered merits issues, often with not even a single lower court opinion as a guide.36<\/a><\/sup>Cf. <\/em>Louisiana v. Am. Rivers, 142 S. Ct. 1347, 1348\u201349 (2022) (mem.) (Kagan, J., dissenting) (In the absence of \u201ctraditionally required\u201d showing of harm, \u201cthe Court\u2019s emergency docket \u2026. becomes only another place for merits determinations, except made without full briefing and argument\u201d).<\/span> This was long the Supreme Court\u2019s default approach to emergency relief.37<\/a><\/sup>See, e.g.<\/em>, R.R. Comm\u2019n of Tex. v. Pullman Co.<\/em>, 312 U.S. 496, 500 (1941) (\u201cThe history of equity jurisdiction is the history of regard for public consequences in employing the extraordinary remedy of the injunction\u201d); Yakus v. United States, 321 U.S. 414, 440 (1944) (the Court\u2019s task in considering emergency relief is to \u201cbalance[] the conveniences of the parties and possible injuries to them according as they may be affected by the granting or withholding of the injunction\u201d); Hecht Co. v. Bowles, 321 U.S. 321, 329\u201330 (1944) (federal courts\u2019 equity practice has \u201ca background of several hundred years of history\u201d in which \u201cequity [is] the instrument for nice adjustment and reconciliation between the public interest and private needs as well as between competing private claims\u201d); Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982) (\u201cIn exercising their sound discretion, courts of equity should pay particular regard for the public consequences in employing the extraordinary remedy of injunction\u201d); Winter<\/em>, 555 U.S. at 32 (\u201c[T]he balance of equities and consideration of the public interest\u2026are pertinent in assessing the propriety of any injunctive relief, preliminary or permanent\u201d); id<\/em>. at 31 n.5 (consideration of the equities alone can serve as the basis for a court\u2019s denial of a request for preliminary injunctive relief \u201ceven if plaintiffs are correct on the underlying merits\u201d). <\/span> But the Court\u2019s response to ever-more-frequent applications to block national regulations appears now to be trending in the opposite direction. In recent emergency docket actions, the Court has signaled that its consideration of irreparable harm allegations and the relative equities is far less<\/em> important than the Court\u2019s evaluation of likely merits success\u2014and perhaps, in practice, little more than a box-checking exercise.<\/p>\n

Take, for instance, the highly unusual oral arguments the Court called for on applications to halt the Occupational Safety and Health Administration\u2019s (OSHA) COVID-19 vaccine mandate (NFIB v. OSHA<\/em>)38<\/a><\/sup>595 U.S. 109, 120\u201321 (2022) (per curiam) (granting applications to stay OSHA\u2019s COVID vaccine mandate following expedited oral argument).<\/span> and the EPA\u2019s Good Neighbor Rule (Ohio v. EPA<\/em>).39<\/a><\/sup>144 S. Ct. 538, 539 (2023) (mem.) (ordering oral argument on applications to stay the EPA\u2019s Good Neighbor Rule).<\/span> While in some respects these arguments were a welcome indication that the Court is invested in increasing transparency and procedure on the emergency docket, the arguments also signaled the Court\u2019s unwillingness to engage in robust interrogation of irreparable harm claims in complex agency cases, even where the challenged regulations afford vitally important public health protections. In NFIB<\/em>, for example, the Court\u2019s unsigned order identified the competing equities implicated by staying OSHA\u2019s vaccine rule\u2014economic costs to challengers versus deaths and hospitalizations from a viral pandemic\u2014but then announced that \u201cit is not [the Court\u2019s] role to weigh such tradeoffs.\u201d40<\/a><\/sup>142 S. Ct at 666; see also <\/em>Vladeck<\/span>, supra <\/em>note 1, at 253 (\u201cThis pattern\u201d of the Court disclaiming responsibility to weigh competing equities on its emergency docket \u201cwas arguably already clear from the shadow docket rulings in [prior] Trump Administration and COVID cases, but here was the majority finally saying the quiet part out loud\u201d). <\/span> This was a striking conclusion considering the centrality of just such weighing to the historic test for granting or denying provisional equitable relief.41<\/a><\/sup>See, e.g.<\/em>, Barnes, 501 U.S. at 1305 (Scalia, J., in chambers) (In reviewing a stay application, \u201c[i]t is ultimately necessary\u201d for the Court \u201cto balance the equities\u2014to explore the relative harms to applicant and respondent, as well as the interests of the public at large\u2026 The likelihood that denying the stay will permit irreparable harm to the applicant may not clearly exceed the likelihood that granting it will cause irreparable harm to others\u201d) (internal quotation omitted); Williams v. Zbaraz<\/em>, 442 U.S. 1309, 1312 (1979) (Stevens, J., in chambers) (\u201cIn addressing the irreparable-injury issue, the task of a judge or Justice is to examine the competing equities, \u2026 a task that involves balancing the injury to one side against the losses that might be suffered by the other\u201d) (cleaned up); Beame v. Friends of the Earth, 434 U.S. 1310, 1312 (1977) (in considering a stay motion, \u201ca Circuit Justice should \u2018balance the equities\u2019 \u2026 and determine on which side the risk of irreparable injury weighs most heavily\u201d) (quoting Holtzman v. Schlesinger, 414 U.S. 1304, 1308\u201309 (1973) (Marshall, J., in chambers)).<\/span><\/p>\n

The same theme was reprised at the Good Neighbor Rule oral argument in February 2024.42<\/a><\/sup>Orders on applications to stay the Good Neighbor Rule are still pending as of the time of publication. <\/span> Multiple States and industry groups filed emergency applications asking the Court to halt implementation of an EPA rule requiring \u201cupwind\u201d States to prevent significant amounts of dangerous smog-forming pollution from flowing across their borders and interfering with \u201cdownwind\u201d States\u2019 ability to meet national air quality standards. The D.C. Circuit had denied motions to stay the rule in summary orders with no express findings.43<\/a><\/sup>Order, Utah v. EPA, No. 23-1157 (D.C. Cir. Sept. 25, 2023), Doc. 2018645; Order, Utah v. EPA, No. 23-1157 (D.C. Cir. Oct. 11, 2023), Doc. 2021268.<\/span> The Supreme Court was thus presented with undistilled evidentiary declarations expressing claims of harm from, on the one hand, the EPA\u2019s regulation of emissions from power plants and other heavy industry, or on the other, harm from allowing that pollution to continue unabated (or, at the least, abated at vast cost to the downwind states)\u2014and the Court, at least at the argument, showed little interest in sifting through the evidence and weighing the relative magnitudes of the harm.<\/p>\n

Justice Kavanaugh, for example, declared at oral argument that \u201cboth sides have irreparable harm, so that\u2019s a wash\u2026. [B]oth sides have a strong public interest in my view. So, then the only other factor on which we can decide this under our traditional standard is likelihood of success on the merits.\u201d44<\/a><\/sup>Transcript of Oral Argument at 74, Ohio v. EPA (U.S. Feb. 21, 2024) (No. 23A349).<\/span> However, Justice Kavanaugh offered no explanation for why he believed that the harms to regulated industry from denying a stay canceled out harms to the downwind public and States from granting one (and, in fact, they do not). Instead, it appeared that the mere presence of some<\/em> claimed harm on either side sufficed to take consideration of the relative hardships out of play.<\/p>\n

Justice Kavanaugh picked up on the same idea in his concurring opinion in Labrador<\/em>. Much as he had suggested in the Good Neighbor argument that the harm arguments of the applicants and respondents were \u201ca wash,\u201d his concurrence seems to argue for the casting aside laborious irreparable harm and public interest balancing when applicants are seeking to halt \u201cimportant\u201d national rules:<\/p>\n

In those emergency cases, the plaintiffs\u2014including individuals and businesses\u2014often will suffer irreparable harm if the relevant government officials are not enjoined from enforcing the law during that multiyear period. But on the flip side, other parties\u2014including the Federal Government, the States, or other individuals and businesses\u2014often will suffer irreparable harm if the relevant government officials are enjoined from enforcing the law during that multiyear period.
If the moving party has not demonstrated irreparable harm, then this Court can avoid delving into the merits. But not infrequently\u2014especially with important new laws\u2014the harms and equities are very weighty on both sides. In those cases, this Court has little choice but to decide the emergency application by assessing likelihood of success on the merits.45<\/a><\/sup>Labrador v. Poe, 144 S. Ct. 921, 929 (2024) (mem.) (Kavanaugh, J., concurring). <\/span><\/em><\/p>\n

This approach, if accepted, would represent a major transformation. The Court\u2019s usual way of acknowledging the limits of its institutional competence is to deny certiorari.46<\/a><\/sup>Or, in the extreme case, the Court may declare a question nonjusticiable. See, e.g.<\/em>, Rucho v. Common Cause, 588 U.S. 684 (2019) (holding that partisan gerrymandering claims raised nonjusticiable political questions).<\/span> In cases that entail review of a massive administrative record and factual skirmishes between an agency and regulated industry, the Court will almost invariably refuse to grant review, at least unless the case presents the chance to guide lower courts by announcing some high-level legal principle. But emergency applications demand the Court\u2019s attention\u2014under its current practice, apparently, the Court cannot decline to rule.47<\/a><\/sup>See Labrador<\/em>, 144 S. Ct. at 928 (Kavanaugh, J., concurring) (\u201cThe Court has no authority to reject or turn away emergency filings without deciding them\u201d).<\/span> The Court thus needs some mechanism to regulate the flow of emergency applications, lest the preliminary-relief come to overtake and dominate normal merits adjudication.<\/p>\n

Traditionally, the Court\u2019s balancing<\/em> of the competing equities has largely provided that check\u2014ensuring that Supreme Court emergency relief truly is exceptional, granted only where the applicant faces genuinely irreparable harm, akin to an emergency, and also limited to cases where the public and private harms from granting<\/em> relief are clearly less burdensome.48<\/a><\/sup>See supra <\/em>notes 33 & 34.<\/span> The notion of a comparative judicial weighing<\/em>\u2014comparing potential harms that granting or denying relief would cause the moving party, the opponent, other parties, and the public\u2014is definitional to courts\u2019 task in ruling on requests for preliminary relief.49<\/a><\/sup>See supra <\/em>notes 37 & 41.<\/span> Indeed, so integral is the balancing of equities to the traditional emergency relief test that it is questionable whether the Court could<\/em> downgrade its role absent changes to the tradition-oriented statutory provision that authorizes emergency injunctions.50<\/a><\/sup>See<\/em> All Writs Act, 28 U.S.C. \u00a7\u20091651(a) (\u201cThe Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law\u201d).<\/span> And while the Court has long been mindful of limitations on its ability to be a first-instance fact finder, its members historically have expressed that recognition by according weight to lower courts\u2019 assessments of the competing equities.51<\/a><\/sup>See, e.g.<\/em>, Packwood v. Senate Select Comm. on Ethics, 510 U.S. 1319, 1320, (1994) (Rehnquist, C. J., in chambers) (\u201cBecause this matter is pending before the Court of Appeals, and because the Court of Appeals denied his motion for a stay, applicant has an especially heavy burden\u201d); Fargo Women’s Health Organization v. Schafer, 507 U.S. 1013, 1014 (1993) (O\u2019Connor, J., concurring in denial of stay application) (\u201cWhen a matter is pending before a court of appeals, it long has been the practice of Members of this Court to grant stay applications only \u2018upon the weightiest considerations\u2019\u201d) (quoting O\u2019Rourke v. Levine, 80 S. Ct. 623, 624 (1960) (Harlan, J., in chambers)); Graves v. Barnes, 405 U.S. 1201, 1203 (Powell, J., in chambers) (\u201cStays pending appeal to this Court are granted only in extraordinary circumstances. A lower court judgment, entered by a tribunal that was closer to the facts than the single Justice, is entitled to a presumption of validity\u201d); Beame v. Friends of the Earth, 434 U.S. 1310, 1312 (1977) (Marshall, J., in chambers) (a stay applicant\u2019s \u201cburden is particularly heavy when … a stay has been denied by the District Court and by a unanimous panel of the Court of Appeals\u201d); Certain Named and Unnamed Non-Citizen Children v. Texas,<\/em> 448 U.S. 1327, 1331 (1980) (Powell, J., in chambers) (\u201c[I]nterference with an interim order of a court of appeals cannot be justified solely because [a Circuit Justice] disagrees about the harm a party may suffer\u201d); Doe v. Gonzales, 546 U.S. 1301, 1308 (2005) (Ginsburg, J., in chambers) (\u201cRespect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition\u201d).<\/span><\/p>\n

Sometimes, of course, justice will require a court to provide relief before it has decided that the movant has won the case, but a court should be very reluctant to do that and should hold the movant to a high bar. This is perhaps especially so where applicants are seeking to halt duly adopted regulations that implement congressional commands. Courts should hesitate to disturb rulemakings that are the culmination of elaborate, participatory public processes, reflecting the policy judgments and technical expertise of conscientious Executive Branch officials\u2014sworn, like judges, to uphold the law.<\/p>\n

The alternative approach suggested by Justice Kavanaugh\u2019s opinion in Labrador<\/em> and by the per curiam Court in NFIB<\/em>\u2014that so long as regulations implicate irreparable harms on both sides, emergency applications should be decided by likelihood-of-success-on-the-merits review\u2014would point in the wrong direction. Such proceedings may also invite parties to advance extreme claims of harm, comfortable that the Court\u2019s processes will not involve adversarial testing of those claims (and maybe not even close examination). It would result in the Court\u2019s leapfrogging statutory judicial review proceedings and bypassing lower courts\u2019 judgments on the equities. That outcome, one would think, also would not be good for the Court in an era of vivid partisan coloration of almost every significant regulatory dispute. But it is where the Court has now positioned itself.<\/p>\n

B. The Court\u2019s Difficulties in Accounting for Public Benefits and Limited Means to Assess Extravagant Claims of Imminent Harm<\/em><\/p>\n

The emergency docket pushes the limits of the Court\u2019s institutional competence. Three of the four factors of the traditional emergency relief analysis\u2014\u201cwhether the applicant will be irreparably injured absent a stay;\u201d \u201cwhether issuance of the stay will substantially injure the other parties interested in the proceeding;\u201d and \u201cwhere the public interest lies\u201d\u2014all turn on facts.52<\/a><\/sup>Nken v. Holder, 556 U.S. 418, 434 (2009).<\/span> But unlike civil litigation in district courts, defined procedures for eliciting facts from evidence are scant in appellate courts. And for various reasons described below, the Supreme Court is especially ill-suited to engage in fact-finding. This fundamental mismatch is likely to be both contributing to stay orders that appear to devalue consideration of the equities, and prompting, in part, Justice Kavanaugh\u2019s rationale in Labrador<\/em>.<\/p>\n

1. Lack of Procedures and Structures to Support Fact-Finding
<\/em>Supreme Court stay proceedings are very different from the preliminary-injunction proceedings that form a routine part of district courts\u2019 dockets. A district court preliminary injunction proceeding allows for formal adversarialism, often including live testimony, cross-examination, and extensive briefing under the Federal Rules of Evidence. The Federal Rules of Civil Procedure require that a district judge ruling on a motion for a preliminary injunction must explicitly \u201cstate the findings and conclusions that support its action,\u201d53<\/a><\/sup>Fed. R. Civ. P. 52(a)(1).<\/span> and must explicitly \u201cstate the reasons why [the preliminary injunction] issued\u201d as well as describe the terms \u201cspecifically\u201d and the relief \u201c[in] detail.\u201d54<\/a><\/sup>Fed. R. Civ. P. 65(a).<\/span> And, upon an appeal of a grant or denial of a preliminary injunction, it is hornbook law that the trial court\u2019s decision is reviewed deferentially for \u201cabuse of discretion\u201d\u2014in part because of the extensive opportunities to present and test evidence the appealing party had in the district court.55<\/a><\/sup>See, e.g.<\/em>, Zervos v. Verizon New York, Inc.,<\/em> 252 F.3d 163, 171 (2d Cir. 2001).<\/span><\/p>\n

In appellate court stay proceedings, the situation is starkly different. Courts of Appeals often provide no explanation for their decisions on emergency motions.56<\/a><\/sup>See, e.g.<\/em>, Labrador v. Poe, 144 S. Ct. 921, 922 (Gorsuch, J. concurring) (noting that the court of appeals below \u201cdenied [movant\u2019s] stay request in a brief unreasoned order\u201d). D.C. Circuit orders on significant EPA Clean Air Act rules have typically contained only conclusory statements as to whether the stay standard had been met, see, e.g.<\/em>, Order, EME Homer City Generation, LP v. EPA, No. 11-1302 (D.C. Cir. Dec. 30, 2011), Doc. 1350421 (stating only that petitioners challenging the Cross-State Air Pollution Rule \u201chave satisfied the standards required for a stay pending court review\u201d); Order, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Jan. 21, 2016), Doc. 1594951 (stating only that petitioners challenging the Clean Power Plan \u201chave not satisfied the stringent standards for a stay pending court review\u201d); Order, Utah v. EPA, No. 23-1157 (D.C. Cir. Oct. 11, 2023), Doc. 2021268 (same for petitioner challenging the Good Neighbor Rule). Cf.<\/em> Order, Coalition for Responsible Regulation v. EPA, No. 09-1322 (D.C. Cir. Dec. 10, 2010), Doc. 1282558 (\u201cPetitioners have not satisfied the stringent standards required for a stay pending court review.\u2026 Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are \u2018certain,\u2019 rather than speculative, or that the \u2018alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin\u2019\u201d) (citation omitted).<\/span> The Federal Rules of Appellate Procedure provide no right to present live testimony, and even if such testimony is a theoretical possibility, it just is not done. Further, upon Supreme Court consideration of an emergency application, the Court is not formally reviewing<\/em> the district court\u2019s or the appellate court\u2019s decision to grant or deny a stay at all; instead, each application is treated as a brand-new request for the Court to provide interim relief under the All Writs Act.57<\/a><\/sup>See <\/em>28 U.S.C. \u00a7 1651.<\/span> Despite this, there is little structure to support and guide first-order fact-finding at the Court. The Court has a rigid calendar set by custom, and the Justices do not gather very often. Lengthy hearings of any kind, or any hearings of live testimony, do not fit well with the Court\u2019s traditional toolkit. And fact-finding by multi-member bodies is messy, especially where there are nine people. Indeed, in original-jurisdiction cases where it must perform the nominal role of fact-finder, the Court delegates that task to special masters.58<\/a><\/sup>See generally <\/em>Anne-Marie C. Carstens, Lurking in the Shadows of the Judicial Process: Special Masters in the Supreme Court\u2019s Original Jurisdiction Cases<\/em>, 86 Minn. L. Rev<\/span>. 625 (2002); see also<\/em> Arizona v. California, 140 S.Ct. 684, 684\u201385 (2020) (mem.) (Thomas, J. dissenting from denial of motion for leave to file complaint) (criticizing the Court\u2019s reading of Article III\u2019s grant of original jurisdiction over suits between states to be permissive rather than mandatory).<\/span> Moreover, the Court is accustomed to deciding only issues that it carefully selects\u2014almost invariably legal<\/em> issues that are clearly presented and that have been elucidated and debated in multiple lower court decisions. The Court is not well equipped to decide preliminary relief motions ab initio, particularly when they turn on disputed facts.<\/p>\n

2. Difficulties in Giving Fair Weight to Regulatory Beneficiaries Whose Interests May be Affected by a Delay in Implementing Regulations<\/em><\/p>\n

Even when respective harms and equities implicated by a regulatory challenger\u2019s emergency application are \u201cvery weighty,\u201d59<\/a><\/sup>Labrador, <\/em>144 S. Ct. at 929 (Kavanaugh, J., concurring).<\/span> it should be the very rare case in which they are actually equally<\/em> weighty.60<\/a><\/sup>Accord <\/em>Stephen Vladeck, Justice Kavanaugh\u2019s Defense of the Shadow Docket<\/em>, One First (Apr. 18, 2024), https:\/\/stevevladeck.substack.com\/p\/bonus-76-justice-kavanaughs-defense [https:\/\/perma.cc\/Y8TZ-UZMJ]. <\/span> In the atypical litigation context of challenges to federal environmental rules, the stakes of granting relief can often be particularly large and disruptive. The collateral damage of a stay may extend across the nation and against millions of members of the public who are supposed to be protected from health harms or otherwise benefited (of course, there may be many non-litigants benefited by a stay as well). And the beneficiaries of a regulation should not be given any less solicitude from a court simply because they did not intervene in the lawsuit (assuming a court would have granted intervention61<\/a><\/sup>See, e.g.<\/em>, Massachusetts Sch. of L. at Andover, Inc. v. United States, 118 F.3d 776, 779\u201380 (D.C. Cir. 1997) (intervention in appellate court is governed by the same standards as in district court, including Federal Rule of Civil Procedure 24\u2019s requirement that a movant demonstrate their interest is not adequately represented by existing parties).<\/span>). Due respect for the laws means that courts should give fair and thorough consideration to the impact of stays on the people that Congress intended to benefit from regulations of the kind under review.<\/p>\n

When parties seek to block national rules that agencies have determined will provide large net benefits to millions of people, the equitable balance should not treat that aggregate benefit as a simple checkmark in a binary inquiry that asks only whether the two sides of the case both have some irreparable harms. If the applicant is seeking a stay or preliminary injunction that will halt implementation of the rule as to anyone, then the entire public cost of the injunctive relief should weigh against the applicant\u2019s plea for temporary relief. If, say, a company seeking a stay of a new environmental regulation shows that, for it, compliance will cause significant harm (say, $2 million in economic losses) over the time it might take for a court to reach a decision on the merits, but the agency can show that the requested relief would sacrifice $200 million in net benefits, this 100-fold difference in comparative harms should tip any equitable balancing, excepting perhaps some extraordinary legal error.62<\/a><\/sup>As noted below, if a stay movant is seeking relief only as to itself or is seeking to enjoin only a portion of the rule, the \u201ccosts of a stay\u201d would be correspondingly reduced. See infra<\/em> Section III.B. Note that parties seeking to block environmental and public health rules are virtually never required to post a bond to cover the defendant governmental agencies or other parties\u2019 losses from an \u201cerroneous\u201d stay (i.e., one followed by a merits decision for the defendant). Cf.<\/em> Fed. R. Civ. P. 65(c) (\u201cThe court may issue a preliminary injunction or a temporary restraining order only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained\u201d). The health and environmental harms caused by blocking such regulations are typically irreparable in the sense that no monetary compensation is available.<\/span> It would be wrong for a court to deem this a \u201cwash,\u201d to use Justice Kavanaugh\u2019s phrasing in the Good Neighbor Rule argument,63<\/a><\/sup>Transcript of Oral Argument at 74, Ohio v. EPA, No. 23A349 (U.S. Feb. 21, 2024).<\/span> and resolve the case as if likelihood of success were the sole outcome-affecting consideration.<\/p>\n

3. The Difficulties Inherent in Adequately Probing Parties\u2019 Non-Record Allegations Regarding Impacts of Regulation<\/em><\/p>\n

It is vital as well that the Court do more than simply accept parties\u2019 claims of irreparable harm (and this goes for both sides of any litigation, of course). In our experience, stay litigation over environmental regulation has yielded some particularly extreme harm allegations that would benefit from the sort of rigorous adversarial testing that is difficult to come by in stay proceedings as typically conducted.<\/p>\n

Clean Power Plan<\/strong><\/p>\n

In 2016, the Supreme Court voted 5-4 to stay the Clean Power Plan,64<\/a><\/sup>West Virginia v. EPA, 577 U.S. 1126 (2016). <\/span> which implemented the EPA\u2019s statutory duty under the Clean Air Act to limit climate-warming carbon dioxide emissions from existing (i.e., already built and operating) fossil-fuel power plants.65<\/a><\/sup>See <\/em>80 Fed. Reg. at 64,662 (Oct. 23, 2015); see also<\/em> 42 U.S.C. \u00a7\u20097411(d). <\/span> In the Plan, the EPA determined that a combination of measures were the \u201cbest system\u201d for reducing power-plant carbon dioxide emissions, including shifting power generation to less-polluting sources like gas and renewable energy sources.66<\/a><\/sup>See <\/em>80 Fed. Reg. at 64,667.<\/span> It is impossible to know what led the Supreme Court majority to vote for a stay, but it is certainly true that the Clean Power Plan\u2019s many challengers succeeded in creating surround-sound publicity and court filings warning that the Clean Power Plan was nothing short of a national emergency.<\/p>\n

Challengers to the Clean Power Plan\u2014led by Republican state attorneys general, coal companies, and coal-heavy power companies\u2014immediately moved to stay the rule (indeed, some pursued unsuccessful but tone-setting lawsuits asking courts to block the Plan even before it was finalized).67<\/a><\/sup>In re Murray Energy Corp., 788 F.3d 330, 335 (D.C. Cir. 2015). The Murray company was represented by Professor Laurence Tribe, who had argued that the Clean Power Plan was so blatantly unlawful and harmful that it warranted a departure from normal finality requirements. <\/span> They placed before the courts reams of declarations asserting massive harms, characterizing the Plan as an enormity that would crush the private economy and state governments alike, and \u201cthreaten[] blackouts.\u201d68<\/a><\/sup>See<\/em> Utility Air Regulatory Group and Public Power Association Motion to Stay, West Virginia v. EPA, No. 15-1363, pp. 14\u201319 & declarations cited (D.C. Cir. filed Oct. 23, 2015); State Petitioners\u2019 Motion for Stay, West Virginia v. EPA, No. 15-1363, pp. 15-19 and declarations cited (D.C. Cir. filed Oct. 23, 2015). The reference to blackouts is from the State Petitioners\u2019 Motion to Stay (p. 20, citing Lloyd Decl. \u00b6\u00b6<\/em> 31, 33, 41\u201346). <\/span> The agency countered that the Plan was actually in line with where the power sector was already going, and that its generation-shifting approach was favored by many power companies as the cheapest and most realistic way to reduce climate-destabilizing pollution.69<\/a><\/sup>See, e.g., <\/em>Respondent EPA\u2019s Opposition to Motions to Stay Final Rule, West Virginia v. EPA, No. 15-1363 at 2 (D.C. Cir. Filed Dec. 3, 2015) (\u201cMany sources are already implementing the measures discussed in the Rule, at least to some degree, on their own. Contrary to Movants\u2019 position, Congress did not require that EPA, in determining the \u2018best system of emission reduction\u2019 for the largest CO2 sources, disregard the proven strategies these sources are already <\/em>effectively employing, in favor of little or no CO2 limitation\u201d).<\/span> But the Plan\u2019s complexities made it difficult for the agency and its supporters to reframe the challengers\u2019 characterization.<\/p>\n

One large coal company, Peabody, claimed that the mere announcement of the Clean Power Plan had precipitated a steep decline in the company\u2019s stock value;70<\/a><\/sup>See<\/em> Emergency Renewed Petition for Extraordinary Writ by Intervenor Peabody Energy Corporation at 7, Murray Energy Corp. v. EPA, No. 14-1112 (D.C. Cir. Aug. 13, 2015). See also<\/em> Peabody Energy Corp.\u2019s Motion to Stay, West Virginia v. EPA, No. 15-1363, at 18\u201319 (filed Oct. 23, 2015) (\u201c[f]rom the day before the Rule was announced to the close of the markets the day after the announcement, Peabody\u2019s public shares and bonds lost more than $90 million in value\u201d) (citing Galli Decl. \u00b6\u00b6 29\u201330).<\/span> would cause \u201cirreparable harm on a massive, multi-state and unprecedented scale\u201d \u201cevery day that judicial review is pending;\u201d and would \u201cforc[e] the coal industry to curtail production, idle operations, lay off workers, and close mines.\u201d71<\/a><\/sup>Peabody Energy Corp.\u2019s Motion for Stay at 3, West Virginia v. EPA, No. 15-1363 (D.C. Cir. Nov. 5, 2015); Coal Industry Application for Immediate Stay of Final Agency Action pending Judicial Review at 32, Murray Energy Corp. & Peabody Energy Corp. v. EPA, No. 15A778 (U.S. Jan. 27, 2016).<\/span> Coal companies went on to say that the EPA had \u201ccondemn[ed] the coal industry to a greatly diminished future\u201d and \u201censured immediate irreparable harm.\u201d72<\/a><\/sup>Coal Industry Application for Immediate Stay of Final Agency Action pending Judicial Review at 33, Murray Energy Corp. & Peabody Energy Corp. v. EPA, No. 15A778 (U.S. Jan. 27, 2016).<\/span><\/p>\n

Peabody\u2019s claims were doubtful and, it soon became clear, not shared even by its own executives. When Peabody filed for bankruptcy less than three months after the Supreme Court stayed the Clean Power Plan, its Chief Financial Officer (CFO) explained in a sworn affidavit that Peabody had been harmed by low natural gas prices and the declining value of coal worldwide<\/em>, belying the claim that U.S. environmental regulations caused the downturn.73<\/a><\/sup>Declaration of Amy B. Schwetz, Executive Vice President & Chief Financial Officer of Debtor Peabody Energy Corporation, in Support of First Day Motions of Debtors and Debtors in Possession \u00b6\u00b6 50\u201354, In re Peabody Energy Corp. et al., No. 16-42529 (Bankr. E.D. Mo. Apr. 13, 2016).<\/span> The CFO also cited the company\u2019s decision to \u201cfinance[] a number of investments with debt\u201d in 2011 and 2012. By 2016, falling coal prices, \u201ccoupled with lower volumes, resulted in the Company\u2019s debt burden becoming unsustainable.\u201d74<\/a><\/sup>Id.<\/em> \u00b6 11.<\/span> She referenced \u201cincreased regulatory hurdles\u201d only in passing, and the Clean Power Plan garnered no mention at all.75<\/a><\/sup>See id.<\/em> \u00b6 51. Stay movants submitted other jaw-dropping claims of harm: Peabody and fellow coal company Murray Energy also cited a declaration submitted by the National Black Chamber of Commerce claiming the Rule would cause $565 billion in increased electric bills, \u201cincrease consumer retail electric rates by 12-17%,\u201d \u201cincrease African-American poverty numbers by 23% and Hispanic poverty by 26%,\u201d and \u201clead to the loss of 7 million African-American and 12 million Hispanic jobs.\u201d Peabody Energy Corp.\u2019s Motion for Stay, supra<\/em> note 71, at 20. <\/span><\/p>\n

Although the Supreme Court\u2019s stay orders contained no reasoning (or even recital of what legal test had been applied), the orders profoundly shaped the ensuing litigation and supercharged the challengers\u2019 narrative that the Plan was a hyperaggressive and statute-ignoring action by the EPA, rather than a relatively modest rule that followed industry trends and largely heeded the industry\u2019s design. The stay orders came only five days after the filing of response briefs\u2014as compared to the six-week period that the D.C. Circuit had considered motions before denying them.76<\/a><\/sup>In the D.C. Circuit stay briefing, 10 separate emergency motions were filed in late October and early November 2015; the EPA filed a consolidated response on December 3 and respondent-intervenors on December 8, and replies were filed on December 23. See <\/em>D.C. Circuit Docket, West Virginia v. EPA, No. 15-1363 (D.C. Cir.) The panel issued its unanimous Per Curiam Order denying a stay on January 21, 2015. Per Curiam Order, West Virginia v. EPA, No. 15-1363, (Doc. 1594951). By contrast, in the Supreme Court, five emergency applications were filed with Chief Justice Roberts as circuit Justice on January 26, 2016; responses were filed on February 4, replies on February 5, the case was formally referred to the full Court on and stay orders issued on Tuesday, February 9, 2016. See<\/em> U.S. S. Ct. Dockets, West Virginia v. EPA, No. 15A773 (2016); Basin Elec. Power Co-op. v. EPA, No. 15A776 (2016); Murray Energy Corp. v. EPA, No. 15A778 (2016); Chamber of Commerce v. EPA, No. 15A787 (2016); North Dakota v. EPA, No. 15A793 (2016); see also<\/em> West Virginia v. EPA, 577 U.S. 1126, 1126\u201327 (2016) (stay orders). <\/span> One is left to wonder whether more deliberate scrutiny of the harm assertions advanced by Peabody and other challengers would have led to a different outcome\u2014or at least to a more measured understanding of the Clean Power Plan itself\u2014which in retrospect was not the incipient national emergency claimed at the time.77<\/a><\/sup>When the Trump Administration EPA repealed the never-implemented Clean Power Plan years later, it concluded that repeal offered no economic benefits because market forces had driven power-sector emissions below the Clean Power Plan\u2019s target even in the absence of federal controls. See <\/em>EPA, Regulatory Impact Analysis for the Repeal of the Clean Power Plan, and the Emission Guidelines for Greenhouse Gas Emissions from Existing Electric Utility Generating Units 2\u20135 (2019) <\/span>(\u201c[T]he EPA believes repeal of the CPP under current and reasonably projected market conditions and regulatory implementation is not anticipated to have a meaningful effect on emissions of CO2 or other pollutants or regulatory compliance costs\u201d). That the initial projections of the Plan\u2019s costs were soon proven to be wrong by the operation of the market is hardly atypical for environmental regulations. See, e.g.<\/em>, 88 Fed. Reg. 13,956, 13,975\u201376 (Mar. 6, 2023) (noting that industry\u2019s actual compliance costs with air toxics regulations were under $3 billion despite initial projections of $9.6 billion per year); NESCAUM, Environmental Regulation and Technology Innovation: Controlling Mercury Emissions from Coal-Fired Boilers<\/span> (Sept. 2000) (collecting case studies in which compliance cost projections were far over stated). <\/span><\/p>\n

Good Neighbor Rule<\/strong><\/p>\n

Pending applications to stay the EPA\u2019s Good Neighbor Rule78<\/a><\/sup>88 Fed. Reg. 36,654 (June 5, 2023).<\/span> offer another example of irreparable harm claims that require careful review. The Rule\u2019s near-term requirements apply only to power plants and principally entail plants\u2019 turning on controls they have already installed<\/em>.79<\/a><\/sup>See id. <\/em>at 36,744, 36,755, 36,758.<\/span> There are no<\/em> emissions-reduction requirements for industrial emitters until 2026 or later, and those future requirements, too, reflect proven controls already in use in many regions across the country.80<\/a><\/sup>See id. <\/em>at 36,659; see also generally <\/em>EPA, Final Non-EGU Sectors TSD<\/span> (2023).<\/span> But applicants\u2019 declarations catastrophized about threats to power and heating reliability, national security, consumer pocketbooks, and so on.81<\/a><\/sup>See, e.g.<\/em>, Am. Forest & Paper Assoc. et al. Emergency Application at 28, Am. Forest & Paper Assoc. v. EPA, No. 23A351 (U.S. Oct. 13, 2023); U.S. Steel Corp. Emergency Application at 25\u201326, U.S. Steel Corp. v. EPA, No. 23A384 (U.S. Oct. 26, 2023); State Applicants\u2019 Emergency Application at 25\u201328, Ohio v. EPA, No. 23A349 (U.S. Oct. 13, 2023).<\/span><\/p>\n

For example, a set of gas pipeline company applicants claimed that the Rule would pose sweeping gas and electricity reliability problems,82<\/a><\/sup>See <\/em>Kinder Morgan, Inc. et al. Emergency Application at 23\u201328, Kinder Morgan, Inc. v. EPA, No. 23A350 (U.S. Oct. 13, 2023).<\/span> supported in large part by a declaration describing a computer simulation that one company conducted to model the Rule\u2019s impact on two gas pipelines near Chicago.83<\/a><\/sup>See id. <\/em>at 686a\u2013693a (Declaration of Kenneth W. Grubb).<\/span> On careful reading of the submission, however, the computer simulation raises more questions than it answers. For instance, the company modeled system impacts assuming the retrofits that it \u201creasonably believe[d] it can accomplish [on time],\u201d and then assumed it would shut down<\/em> any engines where retrofits were not completed84<\/a><\/sup>Id. <\/em>at 688a.<\/span>\u2014a strange assumption, as the Rule does not require such an outcome and businesses do not usually stop operating profit-making assets. In addition, the company calculated the simulation\u2019s results in terms of the number of homes served with gas, even though it never specifically claimed that the Rule would result in lost service to those homes.85<\/a><\/sup>See, e.g.<\/em>, id. <\/em>at 692a (\u201cthere could<\/em> be loss of [electric] service\u201d) (emphasis added); id. <\/em>at 693a (applicant is \u201cgreatly concerned about providing reliable service\u201d); id. <\/em>at 25 (describing interruptions in pipeline service that \u201cequates to approximately 1,761,000 homes\u2019 worth of natural gas usage\u201d).<\/span> In general, a particular pipeline facility\u2019s being down would almost certainly not<\/em> mean that homes lose heat.86<\/a><\/sup>See <\/em>Public Interest Respondents\u2019 Response in Opposition to Emergency Applications at 200a\u2013201a, Ohio v. EPA, No. 23A349 (U.S. Oct. 30, 2024) (Declaration of Victoria R. Stamper). <\/span> Upon a cursory read, however, the analytical results framed in terms of 1.7 million impacted homes seems<\/em> alarming.<\/p>\n

Another stay applicant, United States Steel Corporation, stated that the Rule has \u201cnational security implications\u201d because \u201csufficient supply of domestic steel is in the public interest.\u201d87<\/a><\/sup>U.S. Steel Corp. Emergency Application at 25, U.S. Steel Corp. v. EPA, No. 23A384 (U.S. Oct. 26, 2023).<\/span> But the cited support for this ominous claim was a few paragraphs in a declaration by a U.S. Steel employee stating generally that the steel industry is a \u201ccritical infrastructure industry,\u201d and the Rule, in combination with other regulations, \u201ccould <\/em>have a material impact.\u201d88<\/a><\/sup>Id. <\/em>at App.609\u2013App.610 (Declaration of Alexis Piscitelli in Support of Motion for Stay) (emphasis added).<\/span><\/p>\n

Oil & Gas Methane Standards<\/strong><\/p>\n

Efforts at winning a stay with superficially eye-grabbing claims of harm continue. In a recent challenge to Clean Air Act limits on emissions of methane from oil and gas operations, a large group of Republican-led states moved for a stay principally on the basis that the EPA\u2019s rules impose undue burdens on state agencies.89<\/a><\/sup>Petitioners\u2019 Motion to Stay, Texas v. EPA, No. 24-1054 (5th Cir. Apr. 12, 2024) (seeking stay of \u201cStandards of Performance for New, Reconstructed, and Modified Sources and Emissions Guidelines for Existing Sources: Oil and Natural Gas Sector Climate Review,\u201d 89 Fed. Reg. 16,820 (Mar. 8, 2024)).<\/span> West Virginia\u2019s declaration claims that implementing the Rule will require the state to add some 2,708 full-time employees<\/em>.90<\/a><\/sup>Petitioners\u2019 Motion to Stay, Texas v. EPA, No. 24-1054 (5th Cir. Apr. 12, 2024) (citing Crowder (WV) Decl. \u00b6 10 (Exh. 11)). <\/span> West Virginia\u2019s co-movant, the State of Utah, by contrast, estimated that implementation will require the work of just one full-time employee, with support from two others.91<\/a><\/sup>Petitioners\u2019 Motion to Stay, Texas v. EPA, No. 24-1054 (5th Cir. Apr. 12, 2024) (citing Exh. Bird Decl. \u00b6 13 (Exh. 8)).<\/span> Faced with assertions like this, which would typically invite further investigation in regular litigation, the ability of a court considering motions for preliminary relief to probe harm allegations is important. A court applying the traditional stay test will have to do some fact-finding and party-specific harm quantification, inexact as that science may be.<\/p>\n

* * *<\/p>\n

Claims raising the specter of Brobdingnagian compliance costs or catastrophic damage to vital institutions\u2014the national economy, the power system, national security, state governments\u2014are now commonplace in litigation challenging environmental standards. In the Supreme Court, time constraints and institutional limitations make it difficult for the Court to conduct a rigorous evaluation of the evidentiary basis for such claims. The Court has some means to deal with those limitations\u2014such as giving weight to the judgments of lower courts, which typically have more time to dig below the surface of factual claims\u2014but the Court has instead seemed more inclined to lean ever more upon an early-stage assessment of the merits. In effect, the Court is treating its limited competence to evaluate the equities as a basis for granting relief rather than denying it. This is a stark departure from historic practice and is seemingly a poor way to resolve complex administrative law disputes.<\/p>\n

III. Recommendations<\/span><\/p>\n

If the Supreme Court continues to trend toward further devaluation of equitable considerations in its review of emergency applications in administrative rulemaking cases, proponents of national regulatory programs should respond with new strategies. Here we offer a few initial suggestions for courts of appeals, agencies and other litigants, and Congress that we think might ameliorate some of the adverse effects of the Court\u2019s current approach.<\/p>\n

A. Federal Courts of Appeals<\/em><\/p>\n

If almost routine Supreme Court emergency applications in administrative rulemaking cases are here to stay, lower courts could take several actions to improve their own chances of not being de facto reversed via emergency-docket rulings, as well as to help address some of the Supreme Court\u2019s institutional shortcomings in reviewing emergency applications.<\/p>\n

First, in cases where the parties\u2019 initial submissions do not seem to fully answer the questions needed to determine where the equities lie, appellate courts have authority to engage in more robust fact-finding. Federal Rule of Appellate Procedure 48 authorizes courts of appeals to appoint a special master to hold hearings and gather evidence, and the All Writs Act authorizes all federal courts to issue orders regarding factual inquiries in aid of their jurisdiction.92<\/a><\/sup>28 U.S.C \u00a7\u20091651(a).<\/span> Appellate courts might direct or authorize limited discovery to explore key allegations regarding harm caused by the agency\u2019s action, or by a potential stay.<\/p>\n

Second, appellate courts could provide a more tractable basis for assessing the equities by providing more detail on their own rulings on preliminary relief motions\u2014particularly on fact-intensive matters where they are likely to have some institutional advantages over the Supreme Court. Unlike district courts, appellate courts are not bound by rule to provide an express judicial rationale and factual findings in preliminary relief orders; as noted above, they often resolve important emergency motions by conclusory orders lacking any such explanation.93<\/a><\/sup>See supra <\/em>note 56 (citing examples of unexplained orders on emergency motions). <\/span> That practice has considerable merit; it conserves judicial time and effort to a preliminary phase of litigation and prevents the motion panel from commenting about the merits in ways that might complicate the merits panel\u2019s later consideration.<\/p>\n

But courts have discretion to provide more fulsome explanation of rulings on stay motions,94<\/a><\/sup>See, e.g.<\/em>, In re NTE Connecticut, LLC, 26 F.4th 980, 992 (D.C. Cir. 2022) (explaining decision to stay FERC order staying company\u2019s authorization to sell electricity from power plants).<\/span> and should consider doing so in appropriate cases (e.g., unanimous orders on motions to block federal regulations). In a world in which the Supreme Court\u2019s emergency docket is active and the Court does not seem eager to delve into facts, such explanations are more important. While there may be sound reasons for motions panels to avoid fulsome discussion of the legal merits at a motions stage, specific, detailed factual<\/em> findings\u2014especially concerning the nature and extent of any harms, and of potential impacts of a stay on third parties or the public\u2014would be particularly useful in cases where the lower court has in fact grappled with the record.95<\/a><\/sup>The D.C. Circuit has specified in some instances that it was the absence of sufficient showing on irreparable harm, rather than a merits defect or something else, that prompted a denial of a stay. See, e.g.<\/em>, Order, District of Columbia v. Exxon, No. 22-7163 (D.C. Cir. Jan. 30, 2023), Doc. 1983821; Order, Wynnewood Refining Co. v. EPA, No. 22-1015, 2022 WL 2761047, at *1 (D.C. Cir. July 11, 2022); Order, Coalition for Responsible Regulation v. EPA, No. 09-1322 (D.C. Cir. Dec. 10, 2010), Doc. 1282558. General explanation like that is perhaps marginally useful to the Supreme Court, but specific factual finding, as is the rule for district court preliminary injunction rulings (see<\/em> Fed. R. Civ. P. 65), would be more helpful.<\/span> While the Supreme Court might not be obligated to defer to those findings, in practice, the Court likely would give them weight\u2014and such findings might persuade the Supreme Court that the large pile of paper on the balance of harms, despite its magnitude, does not, upon close scrutiny, amount to a \u201cwash.\u201d Moreover, merely helping the Court better navigate large factual records though explicit findings would improve any follow-on proceedings in the Court.<\/p>\n

B. Federal Agencies and Other Litigants<\/em><\/p>\n

Below, we briefly enumerate some strategies that federal agencies and other litigants might consider in responding to a shifting approach to equities in the Supreme Court.<\/p>\n