Recent SCOTUS Decisions of Interest

Generally, congress makes laws (also known as statutes), the agencies like the U.S. Environmental Protection Agency (EPA) write regulations based on those laws, and the courts judge whether the regulation or implementation of the regulation is within the scope of the law. The Supreme Court of the United States (SCOTUS) issued several interesting decisions recently, some of which affect environmental regulations more directly than others.

For example, in Ohio et al v. EPA et al, decided June 27, SCOTUS issued a stay of the Good Neighbor Plan (GNP). U.S. EPA published the GNP, also known as the Ozone Transport Federal Implementation Plan (FIP), in the Federal Register on June 5, 2023. The purpose of the rule was to establish restrictions on NOx emissions from electric utility and industrial combustion sources in over 20 states where U.S. EPA determined emissions were impacting a downwind state’s ability to achieve the 2015 ozone National Ambient Air Quality Standards (NAAQS) and had disapproved their State Implementation Plan (SIP) submitted to fulfill the “good neighbor” clause in the Clean Air Act. In 2023, 12 states were awarded stays of U.S. EPA’s SIP disapprovals, pending the outcome of litigation, so the GNP did not go into effect in those states. Several parties challenged the GNP in the D.C. Circuit.

Because the D.C. Circuit Court did not agree to stay the rule, several parties requested an emergency stay from SCOTUS. The petitioners argued that the GNP was no longer valid because it relied upon the participation of all 23 states, and that the SIP disapprovals and the GNP itself have various flaws. SCOTUS granted the stay because the majority of judges believe that the groups that have sued U.S. EPA over the rule are likely to win their challenges. The outcome is that the 2023 GNP is currently paused in all states, even as U.S. EPA had proposed to expand it. Stay tuned for updates as litigation proceeds. If petitioners are successful, the GNP could be remanded to U.S. EPA for revisions, and we will see another proposal and subsequent final rule. If U.S. EPA is successful in defending the rule, the GNP could be allowed to go into effect with extended compliance deadlines.

There are two other decisions that could affect the process of litigating U.S. EPA rules. You may have seen a myriad of articles with varying viewpoints on the Loper Bright v. Raimondo case, decided June 28, 2024. In that decision, SCOTUS formally discontinued the practice of what was known as Chevron deference. The Chevron case was decided in 1984 and was actually a departure from the traditional approach the courts had taken until that time. Congress writes laws or statutes and then agencies write regulations. Sometimes there are questions about how agencies have interpreted statutes when they have written their regulations. Traditionally, it was the courts’ role to interpret the statute and decide legal questions by applying their own judgment. The Chevron case held that if the statute was silent or ambiguous about the question at hand, the court had to defer to the agency’s interpretation as long as it offered a “permissible construction of the statute,” even if it was not what the Court would have decided on its own. Although Chevron was applied in a limited fashion since then (e.g., there have been cases where courts have determined that although an agency’s interpretation was permissible it was not reasonable), SCOTUS determined that it does not align with the Administrative Procedure Act (APA) and that it “prevents judges from judging.” (The APA governs the process by which federal agencies develop and issue regulations and provides standards for judicial review.)

There are various opinions on what this means, but it likely just means that this is another way that lawyers will work to argue cases. This is much the same situation as the outcome of West Virginia v. EPA, where SCOTUS relied on the “major questions doctrine” to determine that U.S. EPA lacked authority to issue the Clean Power Plan. That case didn’t result in a wholesale dismantling of environmental regulations and this one is not likely to, either. Courts are still likely to give deference to agencies on technical issues, but not as much on questions of regulatory authority if there is a more reasonable interpretation.

The other case, Corner Post v. Board of Governors, decided July 1, 2024, is one that has gotten a little less press, but also involves the APA. The question there was around the time period in which a petitioner must assert a claim. In that case, SCOTUS ruled that the six-year statute of limitations was not from the date of final agency action but from the date when the plaintiff suffers an injury from agency action. This case has limited applicability because other Acts, like the Clean Air Act, have time periods that supersede the APA. For example, the CAA states that litigation has to be filed within 60 days after EPA issues a rule.

While these decisions have generated significant attention and a wide variety of polarized media reporting, we’ve been thinking them through as consultants here at ALL4. The legislative and regulatory process that has existed for decades will continue. The legislature will draft new laws and revise existing laws as they see fit to protect public health and the environment. Agencies will continue to regulate under the authority granted to them by those laws and will continue to propose and finalize regulations that they deem necessary to protect public health and the environment.  The demise of all environmental regulations that has been portrayed in some venues is not a reasonable outcome of these cases. ALL4 will continue to support our clients in complying with regulations, evaluating proposed regulations, and implementing new regulations. Let us know if you have a different reaction to these latest developments – we would love to hear from you.