The Supreme Court has its sights set on another bedrock environmental law, following recent efforts to take on Clean Water Act and Clean Air Act protections.
Justices reconvene Monday with three environmental battles on their docket. In October, they’ll consider a water permitting case brought by San Francisco against EPA. Later in the term, they’ll delve into federal regulators’ authority to authorize temporary nuclear waste storage sites. They will also examine whether to set new limits on the National Environmental Policy Act, which requires agencies to take a “hard look” at the impact of highways, pipelines and other major federal projects.
Environmental lawyers say they’re not optimistic about how the Supreme Court will rule in the cases — especially after the justices reached a decision in June to overturn the Chevron doctrine, which for 40 years helped the government defend rules on key issues like public health, food safety and climate change.
“The Supreme Court has opened up such kind of amorphous ideas and allowed them to affect agencies’ legal decisions, that it invites departure from the text, departure from the purposes, and it flies to pro-industry policy points,” said Lisa Heinzerling, a Georgetown Law professor, during a recent discussion hosted by the Center for American Progress.
While the fall of Chevron is consequential for federal agencies’ ability to craft robust climate rules, the doctrine’s disappearance is rippling through cases on nearly every issue in the purview of U.S. regulators. That includes an upcoming Supreme Court battle over federal restrictions on “ghost guns,” which are unserialized and untraceable firearms created by assembling individually purchased components or pieces from a kit.
In the absence of Chevron, “we can really look at what did Congress intend?” said David Thompson, managing partner at the law firm Cooper & Kirk during remarks at a recent Heritage Foundation event. “What does that really mean? Let’s focus on that.”
This term, the justices could also choose to take the next step in limiting federal agencies by reviving the nondelegation doctrine, which bars Congress from handing too much authority to regulators.
“It’s the one we’re all waiting for,” Thompson said of the doctrine.
The Supreme Court on Friday declined requests to stay two EPA regulations, but the justices still have an opportunity to stop the agency’s power plant rule before litigation runs its course. The uptick in emergency — or “shadow” — docket requests follow the court’s move last term to halt EPA’s “good neighbor” smog pollution rule after hearing expedited arguments in the case.
The good neighbor stay and other similar orders appear to have emboldened Republican-led states and industry groups, said Robert Percival, director of the environmental law program at the University of Maryland.
“It’s almost like these industry groups feel like unless the Supreme Court approves EPA regulations,” Percival said, “they can’t go into effect.”
Cases on the calendar
San Francisco v. EPA
Arguments: Oct. 16
Near the start of the term, the Supreme Court will consider San Francisco’s claims that EPA needs to get more specific on how permit holders must comply with federal Clean Water Act standards.
The city — one of the most liberal in the nation — has drawn support from fossil fuel trade groups in its argument that EPA’s National Pollutant Discharge Elimination System requirements are too generic and leave permit holders at risk of federal enforcement actions.
Justice Department attorneys argue that San Francisco has failed to identify vague language in the federal standards, which they said clearly state that the city cannot spew pollution at levels that result in water quality violations.
Seven County Infrastructure Coalition v. Eagle County, Colorado
Arguments: TBD
At a date yet to be scheduled, the justices will hear a dispute over the impact analysis for a planned oil railway in Utah that has the potential to limit the scope of NEPA reviews for energy and infrastructure projects nationwide.
A lower court found that a Surface Transportation Board permit for the project failed to consider the indirect effects of building the railway, which include increased drilling and an influx of crude to downstream Gulf Coast refiners. Proponents of the rail project say federal agencies need only study project impacts that are within their own regulatory purview.
If the Supreme Court agrees with their argument, the ruling could chill NEPA analyses of other projects’ indirect effects on climate change.
Food and Drug Administration v. Wages and White Lion Investments
Arguments: TBD
Later in the Supreme Court’s term, the justices will consider the Biden administration’s case to reinstate FDA orders rejecting plans to market new e-cigarette products — in flavors like “Jimmy the Juice Man Peachy Strawberry” and “Killer Kustard Blueberry” — that the agency determined would draw young users.
The case matters for environmental regulation because it centers on the Administrative Procedure Act, or the federal law that governs rulemaking from all federal agencies, including EPA.
In the FDA dispute, the 5th U.S. Circuit Court of Appeals ruled that the agency’s denial orders for the e-cigarette products violated the APA’s safeguards against federal actions that are “arbitrary and capricious.”
Nuclear Regulatory Commission v. Texas
Arguments: TBD
The high court will also examine the Biden administration’s power to authorize temporary storage sites for spent nuclear fuel.
With no permanent national repository currently available and plans to place waste in Nevada’s Yucca Mountain stalled, the NRC had approved waste from around the country to be stored in an above-ground, privately owned facility in Texas’ Permian Basin.
The 5th Circuit struck down the license for the Interim Storage Partners facility, but a Supreme Court ruling in the federal government’s favor could clear the way for construction of the Texas site — as well as another planned facility in New Mexico that was blocked by the same appeals court on similar grounds.
Petitions to watch
In addition to cases the Supreme Court has already agreed to hear, there are several pending requests for the justices to take up new battles over federal energy rules, climate change and public lands management. Each petition faces slim odds of being granted by the court.
Here are some of the environmental cases the justices could choose to add to their calendar in the coming months:
‘Nationally applicable’ EPA rules
The Supreme Court could consider a set of cases that would allow EPA’s challengers to file lawsuits in more favorable courts.
Although most lawsuits against EPA rules land in the U.S. Court of Appeals for the District of Columbia Circuit, the agency’s legal foes are pushing in cases concerning biofuels standards and air pollution rules to sue in other courts over regulations that are not “nationally applicable.”
A Supreme Court ruling in their favor would allow EPA challengers to sue in courts that are geographically closer to the on-the-ground impacts of the agency’s rules — and open the door to lawsuits in courts that may be more sympathetic to their claims.
FERC rules
Ohio utility regulators are calling on the Supreme Court to require more scrutiny of the Federal Energy Regulatory Commission when it deadlocks on a decision.
The question before the justices is how much courts should defer to decisions by the typically five-member FERC, in the event it splits 2-2 on an issue. Even without a majority, federal law allows such orders to go into effect.
Ohio PUC’s case centers on FERC’s 2021 approval of changes to a rule that boosted access to renewable energy in the nation’s largest power market.
Climate liability
Critics of climate liability lawsuits against oil and gas companies have two bids before the justices that aim to quash the cases.
Industry lawyers have asked the justices to overturn a Hawaii Supreme Court ruling that moved Honolulu’s climate case against oil companies a step closer to trial. Honolulu’s lawsuit against Sunoco and other oil producers is one of more than two dozen similar cases nationwide that seek monetary compensation from companies for misleading consumers about the dangers of burning fossil fuels.
In a separate petition, 19 Republican attorneys general, led by Alabama, are asking the court for permission to sue five of their Democratic colleagues who have initiated climate liability lawsuits against the oil industry.
California waiver
Oil and biofuel interests are asking the court to strike California’s long-standing authority to set stricter tailpipe emissions rules than the federal government.
The Golden State had used the federal waiver for about 50 years before the Trump administration scrapped it. When President Joe Biden reinstated the state’s authority in 2022, conservative interests sued and lost in the D.C. Circuit.
Seventeen other states and the District of Columbia have adopted California’s stricter emissions standards for cars and trucks.
Youth climate case
The Supreme Court could choose to breathe new life into Juliana v. United States, a long-running youth-led climate challenge against the federal government.
Our Children’s Trust, the Oregon-based law firm that represents the young activists, has asked the court for a rare writ of mandamus that would force the 9th U.S. Circuit Court of Appeals to reverse the youths’ loss.
The young people argue that the federal government’s reliance on oil and gas violates their constitutional right to a livable climate. The 9th Circuit ruled in May to dismiss the case.
Resolution Copper mine
The justices could take up a fight by an Arizona tribe to stop a massive copper mine from being built on an Apache holy site.
Construction of the Resolution Copper project, a joint venture of mining firms Rio Tinto and BHP, is planned for Oak Flat, a site Indigenous groups visit to pray, hold sacred ceremonies and collect acorns for cooking. The site is part of the Tonto National Forest in eastern Arizona.
Lower courts have rejected arguments that the mining project would violate tribal members’ rights under the Religious Freedom Restoration Act.
The San Carlos Apache Tribe has filed a separate petition asking the justices to reverse a decision by the Arizona Supreme Court that allowed the mine to spew copper-contaminated water into a creek held sacred by the tribe.
Public lands
Utah is invoking the Supreme Court’s original jurisdiction in legal battles between states in an attempt to take control of millions of acres of federal land.
The Beehive State claims that it is unconstitutional for the federal government to indefinitely hold 18.5 million acres of Bureau of Land Management rangelands. If it is successful, the state’s long-shot bid could have massive consequences for 144 million acres of public lands across the West, as well as 66 million acres in Alaska.
Conservation groups note that the courts have repeatedly rejected attempts like Utah’s to lay claim to public lands.
Offshore wind
Nantucket residents are turning to the Supreme Court for help in their latest effort to block offshore wind development along the Atlantic Seaboard.
The challengers allege the Biden administration’s push to approve thousands of wind turbines along the East Coast is threatening the endangered North Atlantic right whale. Local residents say NOAA Fisheries and BOEM must do more to study the cumulative effects of more than two dozen planned projects, as part of their analysis for the Vineyard Wind project off the Massachusetts coast.
A lower court ruled earlier this year that the agencies did not violate federal law when they found the wind farm would not jeopardize the marine mammals.
Nondelegation doctrine
A battle over a federal telecommunications program may clear the way for the Supreme Court to bring back a legal doctrine that stops Congress from giving too much leeway to agencies like EPA.
The petition from the Federal Communications Commission contests a 5th Circuit ruling that said Congress delegated too much power to the agency to fund affordable telecommunications access for rural areas, low-income customers and high-cost regions. Conservative lawyers say the program violates the nondelegation doctrine, a legal theory that the Supreme Court last used nearly a century ago.
Nearly all members of the court’s conservative supermajority have expressed interest in revitalizing the doctrine. A revival would serve as the justices’ latest step in gutting federal agency powers, after demolishing Chevron deference last term.
‘Shadow docket’
Republican-led states and industry groups are also urging the Supreme Court to use its emergency docket to stop EPA’s rule limiting carbon emissions from existing coal- and new gas-fired power plants.
Opponents of the rule say EPA improperly relied on an unproven technology — carbon capture and storage — to drive emissions reductions from the sector. They warned that keeping the rule in place could lead to reliability issues in the nation’s electric grid.
The D.C. Circuit has rejected the stay, as the appeals court did in litigation over the Obama-era Clean Power Plan nearly a decade ago. The Supreme Court then granted an emergency stay of the Obama rule in 2016 — a move widely regarded as the emergence of the modern shadow docket — and officially invalidated the regulation in 2022.
