Released March 01, 2024 | SUGAR LAND
en
Written by John Egan for Industrial Info Resources (Sugar Land, Texas)--Although a recent U.S. Supreme Court filing cited Yogi Berra's famous quip, "It's déjà vu all over again," that was highly unusual. Typically briefs and oral arguments at the nation's highest court focus narrowly on legal precedents and principles or regulatory acana. More often than not, the material is as dry as dust except to seasoned practitioners.
For that reason, it was perhaps not surprising that when the Supreme Court heard oral arguments February 21 over the Environmental Protection Agency's (EPA) "Good Neighbor" rule, no one quoted Robert Frost's 1914 poem "Mending Wall," where he wrote, "Good fences make good neighbors."
At issue in three cases that were heard collectively as Ohio v. EPA was the agency's authority under the Clean Air Act to set air emission standards for so-called "upwind" states where power plants, manufacturing facilities, natural gas pipelines, cement kilns, steel mills and other sources of industrial pollution were located in order to protect people living in "downwind" states where the prevailing west-to-east wind patterns would bring pollution eastward.
And although no one invoked Robert Frost in arguing over what has been called the "Good Neighbor" rule, there were several things that were unusual about the February 21 oral argument. First, the court agreed to oral arguments in a case that was still being litigated at the U.S. Court of Appeals for the D.C. Circuit. Second, the court agreed to hear the case on an "emergency" basis, even though the regulation at issue has been in various forms of development, public comment, revision and litigation, for over a decade.
Legal experts quoted by news outlets said it's only the third time in more than 50 years that the court has scheduled arguments on an "emergency" basis on a regulatory matter. Many "emergency" applications seek a stay of execution for a prisoner on death row. The "Good Neighbor" rule is not scheduled to become effective until 2026.
In a third departure from settled practice, the court actually expanded the scope of the case. Originally, the three states suing the EPA asked the Supreme Court to freeze implementation of the "Good Neighbor" rule until the federal appeals court in Washington, D.C., ruled on that litigation. But in accepting the case on an "emergency" basis, the Supreme Court went a step further than that request, agreeing not only to decide whether to suspend the EPA regulation, but also to consider whether the rule itself was reasonable before the lower court ruled on that question.
A decision is expected by the end of the court's term in June, though it may come sooner owing to its "emergency" status.
Ohio v. EPA joins a Supreme Court docket with its share of momentous energy issues. In the Ohio case, three "upwind" states (Ohio, Indiana and West Virginia), industry groups and various companies, including Kinder Morgan Incorporated (NYSE:KMI) (Houston, Texas) and United States Steel Corporation (U.S. Steel) (NYSE:X) (Pittsburgh, Pennsylvania), asked the Supreme Court to freeze the "Good Neighbor" rule while they pursue an appeal with the lower court. The "Good Neighbor" rule, finalized last June, sought to protect "downwind" states, such as Wisconsin, New York and Connecticut, from emissions coming from industrial facilities located in "upwind" states.
The rule itself has a long and convoluted history. When originally finalized in 2011 as the Cross-State Air Pollution Rule (CSAPR), it applied to emissions from facilities in 23 "upwind" states. Several states sued the EPA in separate litigation and multiple courts of appeal temporarily blocked the new rule, now known as the "Good Neighbor" rule. That left the EPA's plan in effect in only 11 of the 23 states that were originally supposed to be covered by it.
The Clean Air Act requires the EPA to occasionally review interstate pollution rules to ensure they align with the latest health guidelines. The Obama administration updated the standards in 2015 and states were required to submit plans within three years showing how they would meet the new goals.
Two of the 23 affected "upwind" states never submitted any plans, and the other 21 submitted plans that the EPA rejected because it said they didn't include any specific actions to comply with the rule. Last year, the agency instead issued its own rule for the 23 "upwind" states. One of the potential remediation options approved by the EPA was installing pollution-control technology to lower emissions of nitrogen oxides (NOx).
Supreme Court Justice Brett Kavanaugh heard a challenge to an earlier version of this rule in 2012 when he was a judge on the D.C. Circuit court. He authored the majority opinion striking down that version of the CSAPR in 2012 in a 2-1 ruling. Two years later, in 2014, that decision was struck down by the U.S. Supreme Court by a 6-2 margin, with the majority opinion written by the late Justice Ruth Bader Ginsburg.
After a long period when energy interests played defense before the nation's highest court, the remaking of that court under former President Donald Trump has made it far more accommodating to the interests of organizations seeking relief from what they term government overreach.
Currently, conservatives outnumber liberals on the court 6-3. While it can be a fool's game to predict Supreme Court rulings based on oral arguments, the February 21 arguments in Ohio v. EPA pitted longtime skeptics of government overreach, such as Justice Kavanaugh, against liberal justices, such as Justice Ketanji Brown Jackson, who wondered why the court was even hearing arguments on an "emergency" basis while the substantive issues were still being litigated, and whose effective date was some time in the future.
News media accounts of the Ohio oral arguments were uniform in predicting the court's conservative super-majority would support the "upwind" states over the EPA and "downwind" states. "Upwind" states that sought an emergency hearing claimed they would soon have to make expensive and politically delicate decisions about what facilities to close or require they install pollution-control measures if they were compelled to follow the "Good Neighbor" rule.
This case could be affected by the court's decision in another energy case heard this term involving the so-called "Chevron" doctrine, a longstanding practice where courts have deferred to the technical expertise of regulatory agencies when they issued new regulations. The "Chevron" doctrine is one of the most-cited court cases in U.S. legal history, covering not only energy and the environment cases but also nearly every other industry that operates under federal regulation. For more on that case, see January 18, 2024, article - Case on Herring Offers the U.S. Supreme Court the Opportunity to Go Fishing for the Administrative State.
In recent rulings, the Supreme Court has invoked the so-called "major questions" doctrine, a vague and recently unearthed principle that questions the ability of a government regulatory agency to issue regulations that affect significant aspects of the economy unless Congress has granted that agency specific authority. In one case involving the "major questions" doctrine, West Virginia v. EPA, the court in 2022 rejected the EPA's rationale for regulating carbon dioxide (CO2) emissions from power plants.
Writing for the majority in West Virginia v. EPA, Chief Justice John Roberts explained the thinking behind the "major questions" doctrine: there was good reason to doubt that "Congress ... intended to delegate ... decision[s] of such economic and political significance, i.e., how much coal-based generation there should be over the coming decades, to any administrative agency." The court said those matters were best left to Congress. For more on the "major questions" doctrine and the ruling in the West Virginia case, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
In prior years, court watchers could bank on justices following the principle of stare decisis, which translated from the Latin means "to stand by things decided." In practice, that meant precedents generally should be followed. But respect for precedent apparently went out the window last year, when the court overturned the longstanding constitutional right to an abortion in the bitterly contested Dobbs v. Jackson Women's Health Organization decision.
Legal observers have noted that in seeking "emergency" relief from this rule, the states were playing to the current court's preference to decide some matters in secret, according to what critics call the "shadow docket" where established procedures are not always followed.
The Brennan Center for Justice at New York University Law School said the Supreme Court's "conservative justices are increasingly using a secretive process to issue consequential decisions." It called the "shadow docket" a "previously obscure procedural mechanism" now being used "in ways that their predecessors did not. For better or for worse, the shadow docket is now a significant part of Supreme Court jurisprudence."
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
For that reason, it was perhaps not surprising that when the Supreme Court heard oral arguments February 21 over the Environmental Protection Agency's (EPA) "Good Neighbor" rule, no one quoted Robert Frost's 1914 poem "Mending Wall," where he wrote, "Good fences make good neighbors."
At issue in three cases that were heard collectively as Ohio v. EPA was the agency's authority under the Clean Air Act to set air emission standards for so-called "upwind" states where power plants, manufacturing facilities, natural gas pipelines, cement kilns, steel mills and other sources of industrial pollution were located in order to protect people living in "downwind" states where the prevailing west-to-east wind patterns would bring pollution eastward.
And although no one invoked Robert Frost in arguing over what has been called the "Good Neighbor" rule, there were several things that were unusual about the February 21 oral argument. First, the court agreed to oral arguments in a case that was still being litigated at the U.S. Court of Appeals for the D.C. Circuit. Second, the court agreed to hear the case on an "emergency" basis, even though the regulation at issue has been in various forms of development, public comment, revision and litigation, for over a decade.
Legal experts quoted by news outlets said it's only the third time in more than 50 years that the court has scheduled arguments on an "emergency" basis on a regulatory matter. Many "emergency" applications seek a stay of execution for a prisoner on death row. The "Good Neighbor" rule is not scheduled to become effective until 2026.
In a third departure from settled practice, the court actually expanded the scope of the case. Originally, the three states suing the EPA asked the Supreme Court to freeze implementation of the "Good Neighbor" rule until the federal appeals court in Washington, D.C., ruled on that litigation. But in accepting the case on an "emergency" basis, the Supreme Court went a step further than that request, agreeing not only to decide whether to suspend the EPA regulation, but also to consider whether the rule itself was reasonable before the lower court ruled on that question.
A decision is expected by the end of the court's term in June, though it may come sooner owing to its "emergency" status.
Ohio v. EPA joins a Supreme Court docket with its share of momentous energy issues. In the Ohio case, three "upwind" states (Ohio, Indiana and West Virginia), industry groups and various companies, including Kinder Morgan Incorporated (NYSE:KMI) (Houston, Texas) and United States Steel Corporation (U.S. Steel) (NYSE:X) (Pittsburgh, Pennsylvania), asked the Supreme Court to freeze the "Good Neighbor" rule while they pursue an appeal with the lower court. The "Good Neighbor" rule, finalized last June, sought to protect "downwind" states, such as Wisconsin, New York and Connecticut, from emissions coming from industrial facilities located in "upwind" states.
The rule itself has a long and convoluted history. When originally finalized in 2011 as the Cross-State Air Pollution Rule (CSAPR), it applied to emissions from facilities in 23 "upwind" states. Several states sued the EPA in separate litigation and multiple courts of appeal temporarily blocked the new rule, now known as the "Good Neighbor" rule. That left the EPA's plan in effect in only 11 of the 23 states that were originally supposed to be covered by it.
The Clean Air Act requires the EPA to occasionally review interstate pollution rules to ensure they align with the latest health guidelines. The Obama administration updated the standards in 2015 and states were required to submit plans within three years showing how they would meet the new goals.
Two of the 23 affected "upwind" states never submitted any plans, and the other 21 submitted plans that the EPA rejected because it said they didn't include any specific actions to comply with the rule. Last year, the agency instead issued its own rule for the 23 "upwind" states. One of the potential remediation options approved by the EPA was installing pollution-control technology to lower emissions of nitrogen oxides (NOx).
Supreme Court Justice Brett Kavanaugh heard a challenge to an earlier version of this rule in 2012 when he was a judge on the D.C. Circuit court. He authored the majority opinion striking down that version of the CSAPR in 2012 in a 2-1 ruling. Two years later, in 2014, that decision was struck down by the U.S. Supreme Court by a 6-2 margin, with the majority opinion written by the late Justice Ruth Bader Ginsburg.
After a long period when energy interests played defense before the nation's highest court, the remaking of that court under former President Donald Trump has made it far more accommodating to the interests of organizations seeking relief from what they term government overreach.
Currently, conservatives outnumber liberals on the court 6-3. While it can be a fool's game to predict Supreme Court rulings based on oral arguments, the February 21 arguments in Ohio v. EPA pitted longtime skeptics of government overreach, such as Justice Kavanaugh, against liberal justices, such as Justice Ketanji Brown Jackson, who wondered why the court was even hearing arguments on an "emergency" basis while the substantive issues were still being litigated, and whose effective date was some time in the future.
News media accounts of the Ohio oral arguments were uniform in predicting the court's conservative super-majority would support the "upwind" states over the EPA and "downwind" states. "Upwind" states that sought an emergency hearing claimed they would soon have to make expensive and politically delicate decisions about what facilities to close or require they install pollution-control measures if they were compelled to follow the "Good Neighbor" rule.
This case could be affected by the court's decision in another energy case heard this term involving the so-called "Chevron" doctrine, a longstanding practice where courts have deferred to the technical expertise of regulatory agencies when they issued new regulations. The "Chevron" doctrine is one of the most-cited court cases in U.S. legal history, covering not only energy and the environment cases but also nearly every other industry that operates under federal regulation. For more on that case, see January 18, 2024, article - Case on Herring Offers the U.S. Supreme Court the Opportunity to Go Fishing for the Administrative State.
In recent rulings, the Supreme Court has invoked the so-called "major questions" doctrine, a vague and recently unearthed principle that questions the ability of a government regulatory agency to issue regulations that affect significant aspects of the economy unless Congress has granted that agency specific authority. In one case involving the "major questions" doctrine, West Virginia v. EPA, the court in 2022 rejected the EPA's rationale for regulating carbon dioxide (CO2) emissions from power plants.
Writing for the majority in West Virginia v. EPA, Chief Justice John Roberts explained the thinking behind the "major questions" doctrine: there was good reason to doubt that "Congress ... intended to delegate ... decision[s] of such economic and political significance, i.e., how much coal-based generation there should be over the coming decades, to any administrative agency." The court said those matters were best left to Congress. For more on the "major questions" doctrine and the ruling in the West Virginia case, see July 1, 2022, article - Supreme Court Kicks Clean Air Case Back to EPA.
In prior years, court watchers could bank on justices following the principle of stare decisis, which translated from the Latin means "to stand by things decided." In practice, that meant precedents generally should be followed. But respect for precedent apparently went out the window last year, when the court overturned the longstanding constitutional right to an abortion in the bitterly contested Dobbs v. Jackson Women's Health Organization decision.
Legal observers have noted that in seeking "emergency" relief from this rule, the states were playing to the current court's preference to decide some matters in secret, according to what critics call the "shadow docket" where established procedures are not always followed.
The Brennan Center for Justice at New York University Law School said the Supreme Court's "conservative justices are increasingly using a secretive process to issue consequential decisions." It called the "shadow docket" a "previously obscure procedural mechanism" now being used "in ways that their predecessors did not. For better or for worse, the shadow docket is now a significant part of Supreme Court jurisprudence."
Industrial Info Resources (IIR) is the leading provider of industrial market intelligence. Since 1983, IIR has provided comprehensive research, news and analysis on the industrial process, manufacturing and energy related industries. IIR's Global Market Intelligence (GMI) platform helps companies identify and pursue trends across multiple markets with access to real, qualified and validated plant and project opportunities. Across the world, IIR is tracking over 200,000 current and future projects worth $17.8 Trillion (USD).
