Shadow Orders Keep Courts in Line
Author
Jonathan H. Adler - Case Western Reserve University
Case Western Reserve University
Current Issue
January-February 2022
Issue
1
Parent Article
The Shadow Docket
Headshot of man with glasses and suit and tie

The Supreme Court’s opinions in argued cases may attract the most attention, but they are only a small part of the Court’s overall work. In a given term the Court may decide 60 or 70 argued cases, but it will consider and rule on petitions and motions in thousands more. It is these other decisions that make up what is often referred to as the shadow docket. Although it has been around since the nation's founding, this portion of the Court's work is suddenly controversial. There has been a dramatic increase in the number of cases in which the Court has been willing to provide emergency or extraordinary relief through orders issued without argument.

The vast majority of shadow-docket orders are denials of one sort or another, such as the denial of a petition that the Court hear a case. A smaller portion consists of consideration of pleas for extraordinary relief, such as granting stays or injunctions or vacating those entered by lower courts. The Court denies most of these requests as well, but it is the growing number of exceptions that attract attention.

Scholars debate the reasons the justices seem more willing to grant extraordinary relief, and whether the increase is a problem. The lion’s share of relevant cases involve tight timelines or extenuating circumstances, as is the case with election contests, executions, and temporary Covid measures. Many seem to involve a disconnect between the current justices and lower courts, as when the Court has vacated lower court injunctions and stays of execution where such orders had not met the relevant standard for judicial relief. In such cases, the Court is fulfilling its obligation to superintend the federal court system, and ensure lower courts are using their equitable powers appropriately.

Where lower courts step out of line, the justices are sometimes moved to act. This occurred with Juliana v. United States, the so-called “Kids Climate Case,” in which the Supreme Court twice signaled to lower courts its displeasure with the course of the proceedings.

Juliana was likely the most ambitious and aggressive climate change suit filed to date. Among other things the plaintiffs claimed the federal government violated their substantive due process rights to life and liberty by failing to control the emission of greenhouse gases. Juliana presented audacious claims, but it took more than aggressive pleadings to stir the justices into action.

The solicitor general only sought Supreme Court intervention after the district court denied the federal government’s motion to dismiss and blocked an interlocutory appeal, setting the stage for intrusive discovery requests against the federal government, and the appeals court refused to intervene. On the SG’s second try, the Court issued an order denying relief, but making clear a majority of justices believed the district court was out of line. The lower courts got the message, and the case was ultimately dismissed on standing grounds.

The justices also used the shadow docket to put the Obama administration’s Clean Power Plan on ice. As with Juliana, the Court’s intervention is best seen as reactive, here to maintain the status quo so as to ensure courts would have an adequate opportunity to consider challenges to EPA’s aggressive regulatory plan. In a prior case, Michigan v. EPA, judicial review was effectively thwarted, as the agency’s rule was held unlawful only after compliance had been achieved. The folks at EPA celebrated this fact, and it appears the justices were not amused and sought to prevent a repeat occurrence. In this regard, the Court issued a stay so as to preserve its ability to engage in meaningful judicial review.

The Court’s forays into the Juliana and Clean Power Plan litigation were unexpected. They may also be a sign of things to come. In both cases, a majority of the Court exhibited impatience with aggressive judicial or regulatory moves responding to the threat of climate change without express congressional authorization. This is further evidence it may take legislative action to get climate policy on course, and keep it out of the shadows.

The Shadow Docket
Author
Robert V. Percival - University of Maryland Law School
University of Maryland Law School
Current Issue
January-February 2022
Issue
1
The Supreme Court Justices in front of mountain scenery

Six years ago, the Supreme Court made an unprecedented intervention in an environmental case, derailing the most important U.S. effort to combat the global climate crisis. Because the petitioner had made an emergency motion, the Court dispensed with plenary review and oral argument in staying the Obama administration’s Clean Power Plan to control greenhouse gas emissions from power plants. Using what is now known as its shadow docket, the justices voted 5-4 to reverse a unanimous decision by the D.C. Circuit to let the regulations take effect while it heard legal challenges to them.

In the last year, the new conservative super-majority on the Court has come under fire for several shadow-docket decisions. It blocked local Covid prevention mandates as infringements on religious liberty, struck down the Biden administration’s extension of the Centers for Disease Control’s eviction moratorium, refused to block a Texas law that effectively bans abortions, and denied the Biden administration’s request to stay a district court decision dictating immigration policy. These actions have provoked strong criticisms from dissenting justices. Justice Breyer told an interviewer that the refusal to block the Texas abortion law was “very, very, very wrong” and that “it’s a huge mistake to decide major things without full argument.”

Responding to the same decision, Justice Kagan attacked the Court’s use of the shadow docket: “Today’s ruling illustrates just how far the Court’s ‘shadow-docket’ decisions may depart from the usual principles of appellate process. That ruling, as everyone must agree, is of great consequence. Yet the majority has acted without any guidance from the Court of Appeals — which is right now considering the same issues.” Kagan went on to blast the hurried process. The Court, she said, “has reviewed only the most cursory party submissions, and then only hastily. And it barely bothers to explain its conclusion — that a challenge to an obviously unconstitutional abortion regulation backed by a wholly unprecedented enforcement scheme is unlikely to prevail.”

In conclusion, Kagan chided the majority for a decision she called “emblematic of too much of this Court’s shadow-docket decisionmaking — which every day becomes more unreasoned, inconsistent, and impossible to defend.”

Most orders the Court issues involve routine matters of case management, and the Court has issued them since its very first term in 1790. But in recent years the Court has used the shadow docket to make highly consequential legal decisions without benefit of plenary review. These orders do not reveal any of the votes unless some justices insist that their dissents be noted. Usually they include little or no explanation of whatever legal reasoning produced them. Many of them, like the decision to block the Clean Power Plan, are rulings on motions for stays that can dramatically change the status quo. Law professor Portia Prado has described judicial stay decisions as “nearly a law-free zone” because of the absence of uniform, principled standards to guide courts and the dearth of written opinions explaining the legal reasons for them.

During a House Judiciary Committee hearing on the shadow docket last winter, concerns were expressed on a bipartisan basis. But when the Senate Judiciary Committee held a hearing on the shadow docket seven months later, Republicans portrayed it as a partisan issue. Senator Ted Cruz (R-TX) argued that “shadow docket” is an “ominous term” invented by Democrats in an effort to intimidate the Supreme Court because “shadows are bad.” The following day Justice Alito pushed back against critics even more harshly in a speech at the University of Notre Dame. Alito declared that “the catchy and sinister term ‘shadow docket’ has been used to portray the Court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways.” He maintained that “this portrayal feeds unprecedented efforts to intimidate the Court or damage it as an independent institution.”

The term shadow docket was coined by University of Chicago professor William Baude in a 2015 law review article. A former law clerk for Chief Justice Roberts, Baude initially entitled the article “Paying Attention to the Orders List.” He changed the title after “a good friend convinced me that nobody would read or cite it.” The new headline was “The Supreme Court’s ‘Shadow Docket.’” Under that rubric, Baude criticized shadow-docket orders and summary decisions for lacking the transparency of cases decided after plenary review. He characterized most of the summary reversals by the Roberts Court as “designed to enforce the Court’s supremacy over recalcitrant lower courts,” while noting that others were “lightning bolts,” which he described as “ad hoc exercises of prerogative.”

The Supreme Court has had a shadow docket throughout history, but until recently it was rarely used to issue high-profile, often controversial decisions, even when time was of the essence. This changed when the last administration filed an unprecedented number of requests for emergency relief with the Court. In its four years in office, the Trump administration filed 41 emergency applications with the Court, compared with only eight that had been filed in the 16 previous years of the George W. Bush and Barack Obama presidencies. Thus, instead of one government request every two years for the Court to issue emergency relief, the Trump administration made such requests almost monthly ­— and the Court’s conservative majority usually granted them. Professor Steven Vladeck reports: “Not counting one application that was held in abeyance and four that were withdrawn, the justices granted 24 of the 36 applications in full and four in part.” While only one of the eight applications for emergency relief filed by the Bush and Obama administrations generated any public dissent by a justice, 27 of the applications from the Trump administration did.

The pattern of conservative justices using the shadow docket to speed the implementation of controversial Trump administration policies was decried by Justice Sotomayor in a 2020 dissent from a 5-4 order. “Today’s decision follows a now-familiar pattern. The Government seeks emergency relief from this Court, asking it to grant a stay where two lower courts have not. The Government insists — even though review in a court of appeals is imminent — that it will suffer irreparable harm if this Court does not grant a stay. And the Court yields.” Sotomayor argued that while stay relief is supposed to be reserved for “truly exceptional cases” when it is “absolutely clear” that a lower court erred, the government now views emergency relief as “the new normal.” But even more troubling to Sotomayor was that “the Court’s recent behavior on stay applications has benefited one litigant over all others” — the Trump administration. She argued that “this disparity in treatment erodes the fair and balanced decisionmaking process that this Court must strive to protect.”

As Sotomayor has written, stay decisions “force the Court to consider important statutory and constitutional questions that have not been ventilated fully in the lower courts, on abbreviated timetables and without oral argument. They upend the normal appellate process, putting a thumb on the scale in favor of the party that won a stay.” This is well illustrated by the “lightning bolt” (to use Professor Baude’s term) the Court issued when it stayed the Clean Power Plan in February 2016.

The CPP, affecting the utility sector, had been the centerpiece of U.S. efforts to persuade the nations of the world to adopt the Paris Agreement in December 2015. It was the culmination of EPA’s response to the Court’s landmark Massachusetts v. EPA decision in 2007, where the Court held that greenhouse gases are “air pollutants” that may be regulated under the Clean Air Act if the agency finds that they endanger public health or welfare. In 2009 EPA made such an endangerment finding. In 2014, the agency proposed regulations to limit GHG emissions from existing power plants. After successfully fending off a premature industry lawsuit seeking judicial intervention to block EPA from even issuing regulations, the agency published them in final form in October 2015. EPA adopted the CPP only after considering 4.3 million public comments, the most the agency had ever received in any rulemaking action during its then 45-year history.

On the very day the final regulations appeared in the Federal Register, coal companies, utilities with coal-fired power plants, and attorneys general from more than two dozen states filed petitions for judicial review in the U.S. Court of Appeals for the D.C. Circuit, the exclusive venue under the Clean Air Act for legal challenges to nationally applicable regulations. They also moved immediately for a stay of EPA’s final rule. After two months of briefing and more than 2,500 pages of evidentiary submissions, the D.C. Circuit panel unanimously denied a stay on January 21, 2016. The panel explained that “petitioners have not satisfied the stringent requirements for a stay pending court review.” The panel cited Winter v. Natural Resources Defense Council, which required a petitioner to “establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”

Opponents of the CPP then took the unprecedented step of filing a stay request with the Supreme Court. No legal observer expected the Court to intervene, because there was no precedent for doing so. The case did not meet any of the normal criteria for Supreme Court review. There was no conflict in rulings by other courts — indeed there could not be, because the Clean Air Act gives the D.C. Circuit exclusive venue. Yet the Supreme Court on February 9, 2016, granted the stay request without offering any explanation. Because justices Ginsburg, Breyer, Sotomayor, and Kagan noted their dissents, all that was known was that the order had been issued by a 5-4 vote.

Although the order was not a judgment on the merits, many interpreted it as a signal that the Court would strike down the CPP regardless of how the D.C. Circuit ruled. “President Obama’s Clean Power Plan is dead and will not be resurrected,” exulted lawyers for the state of Oklahoma in a Wall Street Journal op-ed the following day. Three days later it was Justice Scalia who was dead of a heart attack at the age of 79, making the stay order the last vote he ever cast. It was certainly one of his most consequential acts.

The Court’s order not only offered no legal justification for staying the CPP, it also did not explain how the Court even had jurisdiction to issue it. Rule 11 of the Supreme Court’s rules of procedure authorizes review of a case pending in a U.S. Court of Appeals before judgment if “the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.” But the Court’s order left the case to be decided by the lower court without explaining the reasons for the stay. The Court apparently accepted the thinnest of assertions that power companies would be harmed by a rule that did not impose any immediate legal obligations on them. The CPP allowed states 30 months before submitting compliance plans or they could opt out entirely and leave the planning to EPA. Oklahoma had a hard time claiming irreparable harm because its governor already had issued an executive order banning any state cooperation with EPA. Initial deadlines for power plants to comply did not kick in until 2022 and full compliance was not required until 2030. On its own motion, the D.C. Circuit expedited the case and heard it en banc on September 27, 2016.

A primary criticism of the recent use of shadow-docket orders has been that they do not give the Court sufficient time to reach considered decisions. Throughout history, even when time was of the essence, the Court has been able to hold oral arguments and decide cases in an expedited fashion. In 1952 the Court expedited briefing and oral argument in the Steel Seizure case, granting review within weeks of President Truman’s seizure order and deciding the case just a month later. Twelve days after the New York Times received a restraining order to cease publication of the Pentagon Papers, the Court heard two days of oral argument and decided the case five days later. In the Nixon tapes case the Court granted review less than a month after a district judge ordered the president to turn over his tape recordings. Delaying its summer recess, the Court held oral argument 13 days later and issued its decision just 16 days after that. Each of those cases produced landmark decisions that have withstood the test of time.

The history of environmental law in the Supreme Court demonstrates the importance of granting plenary review. The papers of Justice Thurgood Marshall revealed that the landmark “snail darter” case of TVA v. Hill almost came out the other way in a summary order. The Sixth Circuit had blocked completion of the Tellico dam to save an endangered species of fish. But when the case initially was considered at conference, five justices voted to reverse the injunction summarily. Justice Rehnquist quickly circulated a six-page draft per curiam opinion allowing the dam to be completed. But after Justice Stevens circulated a three-paragraph dissent blasting the Court majority for “unprecedented” and “lawless” action, the five-justice majority found that it could not agree on a rationale for reversal. Only then did the Court agree to hear oral argument. The argument was a true classic, pitting Attorney General Griffin Bell against University of Tennessee law professor Zyg Plater, arguing his first case ever. Plater clearly got the best of the argument, particularly when parrying questions from Chief Justice Burger about equitable discretion in the issuance of injunctions. Ultimately both Burger and Justice White changed their initial votes, producing a resounding, 6-3 victory for the snail darter and the Endangered Species Act.

The Court’s unprecedented stay of the Clean Power Plan represents its most egregious issuance of a “lightning bolt” in an environmental case, but it is not the Court’s only important environmental intervention. Four years ago, the Court issued a shadow-docket order to block a federal district court from holding a trial in the Juliana climate litigation against the federal government. Plaintiffs, who included 21 children between the ages of eight and nineteen, alleged that the federal government violated their substantive due process rights and its public trust obligations by knowing about the dangers of climate change for more than 50 years, but failing to protect them against it.

Federal district judge Anne Aiken rejected the government’s motion to dismiss and scheduled a trial to commence in October 2018. After the Ninth Circuit denied the federal government’s motion for a writ of mandamus to halt discovery and any trial, the federal government then turned to the Supreme Court. On July 30, 2018, the last day before Justice Kennedy’s retirement, the Court denied the government’s request as “premature.” But it did so without prejudice, noting: “The breadth of respondents’ claims is striking, however, and the justiciability of those claims presents substantial grounds for difference of opinion.” The court sent a message to Judge Aiken that she “should take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on the government’s pending dispositive motions.”

On October 19, 2018, days before the trial was scheduled to commence, Chief Justice Roberts, in a one-sentence order, issued before even receiving a response from the plaintiffs, indefinitely stayed discovery and trial in the case. He did so in response to an application from the United States asking for a writ of mandamus dismissing the Juliana petition. Although the Court later vacated its stay, over dissents from justices Thomas and Gorsuch, who would have mandated dismissal of the litigation, it did so on the grounds that the Ninth Circuit could provide adequate relief by persuading Aiken to certify an interlocutory appeal to it. After she did so, in January 2020 a divided panel of the Ninth Circuit dismissed the case for failure to meet the redressability prong of standing doctrine. The two judges in the majority believed that an Article III court did not have the power to remediate the climate change problem.

At a time of great public concern for the environment nearly a half century ago, the Court used a shadow-docket order to pressure another U.S. circuit court to act. In 1974, after the Eighth Circuit stayed a district court’s order requiring the Reserve Mining Company immediately to cease discharging taconite tailings into Lake Superior, the state of Minnesota asked the Supreme Court to vacate the stay. On July 9, 1974, the Court denied the motion over Justice William O. Douglas’s dissent. Concerned that the stay was allowing deadly pollutant discharges to continue, Michigan, Wisconsin, and environmental groups joined Minnesota in October 1974 in again asking the Supreme Court to vacate the stay. To pressure the Eighth Circuit into reaching a decision expeditiously, the Court invited the applicants to renew their request “if the litigation has not been finally decided by the court of appeals” within 16 weeks. The Court’s order helped convince the Eighth Circuit to expedite consideration of the case, which it heard en banc and decided shortly after the Court’s implicit deadline.

Some have suggested that the Court has relaxed the requirement for showing irreparable harm by presuming such harm whenever a district court issues an injunction against the federal government. But because shadow-docket orders typically are issued with little explanation, one cannot be sure. In July 2019, a sharply split Supreme Court stayed an injunction the Sierra Club had obtained to block expenditures of funds to construct President Trump’s border wall. In that case the Court majority explained that “the government has made a sufficient showing at this stage that the plaintiffs have no cause of action to obtain review” of compliance with appropriations restrictions. Writing in partial dissent, Justice Breyer argued that irreparable harm to both sides could be avoided if the government were allowed to enter into contracts to build the wall, without starting the construction that the Sierra Club claimed, and the district court agreed, would be the source of irreparable harm. The Supreme Court’s order allowed the Trump administration to continue building the border wall, even though the funding whose legality was questioned likely would be exhausted before the Court ruled on the merits. In addition to Justice Breyer, three other justices dissented from the stay.

In litigation challenging construction of the Keystone XL pipeline, the Court in July 2020 stayed a district court’s nationwide injunction blocking construction of pipelines crossing federal waters. The district court had vacated the Nationwide Permit authorizing such crossings because it found that the Army Corps of Engineers had failed to adequately consider effects on endangered species when the permit was renewed. However, perhaps because the Court decided not to stay the injunction as it applied to the Keystone XL pipeline that precipitated the litigation, this decision did not spawn any dissent.

There is nothing illegitimate about the Court having a shadow docket, and the term was not coined to place the Court in a bad light. But the Court’s recent use of emergency orders to aggressively promote exclusively conservative ends has cast doubt on its impartiality, undermining its legitimacy. In the year that Justice Barrett has been on the Court, creating a conservative super-majority, the Court has issued seven emergency orders blocking state Covid restrictions. That is nearly twice as many as the four times combined the Court directly blocked state laws during the first 15 years of Chief Justice Roberts’s tenure. Thus it is not surprising that justices Thomas and Barrett have found it necessary to give speeches insisting that the Court is not political, and Justice Alito has responded harshly to critics of the Court’s recent shadow-docket practices. By issuing summary rulings that effectively decide major matters of law and policy with scant briefing and no argument — and by issuing them exclusively to promote conservative causes — the Court may be seriously undermining its credibility.

On October 29, 2021, two conservative justices questioned use of the shadow docket. Voting not to block Maine’s vaccine mandate for infringing on religious freedom, Justice Barrett, joined by Justice Kavanaugh, wrote that the “emergency docket” should not be used “to force the Court to give a merits preview in cases that it would be unlikely to take — and to do so on a short fuse without benefit of full briefing and oral argument.” But on the same day, the Court stunned observers by announcing it would review a decision that the Trump administration had illegally rescinded the Clean Power Plan even though the Biden administration has no plans to revive it. Conservative judicial activism reigns. TEF

LEAD FEATURE Orders issued without plenary review and oral argument used to be rare at the Supreme Court. That changed under the Trump administration. The result was emergency stays issued on average every two months, almost exclusively favoring conservative policy outcomes.

Court Says World Bank Can Be Sued. But More Remedies Needed
Author
Bruce Rich - Environmental Law Institute
Environmental Law Institute
Current Issue
May-June 2019
Issue
3
Bruce Rich

In February, the Supreme Court ruled that the World Bank’s International Finance Corporation as well as other international organizations are not totally immune from lawsuits in the United States. The complaint, Jam v. International Finance Corporation, was filed in the D.C. District Court in 2015. It alleged that the 4,150 megawatt Tata Mundra coal power plant in India, financed with a $450 million loan by the IFC in 2008, contaminated drinking and irrigation water of local farm communities, severely harmed fisheries and fisherfolk, and adversely affected through air pollution public health, inducing involuntary economic and physical displacement.

Though the IFC’s compliance advisor/ombudsman confirmed these allegations in 2013 and again in 2015, management did not act to remedy the problems. Earth Rights International and the Stanford Law Supreme Court Clinic, representing the affected communities, challenged the IFC’s claims to almost complete legal immunity, based on the International Organizations Immunity Act. That 1945 law grants international organizations the same immunity from lawsuits as sovereign states, an immunity that then was almost total. Both the trial court and the appeals court for the D.C. Circuit supported the IFC’s arguments, decisions that the Supreme Court reversed with a 7 to 1 majority.

The main issue was a narrow one: whether the language in the 1945 statute granting the “same” immunity to international organizations as to sovereign states should be interpreted in a “static” or a “dynamic” fashion. In other words, whether the near total immunity that sovereign states enjoyed in U.S. law in 1945 would be frozen in time for international organizations, although the 1976 Foreign Sovereign Immunities Act created broader exceptions for lawsuits against sovereign states.

Chief Justice Roberts ruled that since the FSIA changed the legal parameters for immunity of sovereign states, then the “same” immunity for international organizations also changed. He cited the “reference canon” of statutory interpretation, namely that when a general subject (rather than a specific law) is referred to in a statute, the legal conditions concerning that subject change when relevant future legislation changes.

Roberts wrote that the 1976 FSIA provided that sovereign states (and thus the IFC and other international organizations) could be sued for their “commercial activities,” giving an opening for the plaintiffs to pursue relief. But, he emphasized, “as the government suggested at oral argument, the lending activity of at least some development banks, such as those that make conditional loans to governments, may not qualify as ‘commercial’ under the FSIA.”

And even if all multilateral development bank lending activity were to qualify as commercial, it would also have to be shown that there is a “sufficient nexus” to the United States and that the lawsuit is “based upon” the commercial activity or acts performed in connection with the commercial activity. Remanding the case to the appeals court for further deliberation based on the Supreme Court’s ruling, Roberts noted the government argument that “it had serious doubts whether petitioner’s suit, which largely concerns allegedly tortious conduct in India, would satisfy the ‘based upon’ requirement.”

After four years, the litigation could continue substantially longer. For poor farmers and fisherfolk in India, delayed justice is denied justice more than for most plaintiffs. Litigation in U.S. courts seeking redress for the over half million victims of the 1984 Union Carbide Bhopal chemical disaster continued until 2012. Political pressure by major donor governments on the IFC to assume responsibility for its negligence would provide quicker and more effective redress.

The negligence extends beyond the needless harm inflicted on local poor people. Tata Mundra is also one of the 50 biggest point sources of greenhouse gas emissions on Earth. And the inexpensive electricity rates that Tata and the IFC touted to justify the project depended on import of highly subsidized Indonesian coal. Indonesia halted the subsidies, and in 2011 Tata Power asked the Indian government — in vain — to allow it to double the rate it charged customers, since the plant was losing $250 million annually.

In 2012, Tata Power’s executive director announced that henceforth the company would only invest in wind and solar, both domestically and abroad. “Why would anyone want to invest at this stage in a coal project?“ he said. Then Standard and Poor’s and Moody’s downgraded the company’s debt. In 2017 Tata offered to sell 51 percent of its equity in the multi-billion-dollar coal plant to several Indian states for one rupee. There were no takers.

Court says World Bank can be sued. But more remedies needed.

Climate Litigation Has at Least for Now Dodged a Possibly Fatal Blow
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
March-April 2019
Issue
2
Richard Lazarus

This past fall, the “Trial of the Century” was scheduled to commence in a federal court in Oregon. The plaintiffs? Twenty-one children. The defendant? No less than the United States. And the accusation? That the federal government had violated the children’s constitutional rights by “creating, controlling, and perpetuating a national fossil fueled based energy system, despite long-standing knowledge of the resulting destruction.”

The remedy sought by the plaintiffs was no less ambitious than their claim that the Constitution’s Due Process Clause confers on individuals the right to “a stable climate system capable of sustaining human lives and liberties.” Plaintiffs sought a court order directing the government to implement “an enforceable national remedial plan to cease the constitutional violations by phasing out fossil fuel emissions and drawing down excess atmospheric CO2.”

The 50-day trial seemed unstoppable only days before its start date. The judge had repeatedly denied the government’s motions to dismiss the complaint. No less significantly, by declining to certify the case for interlocutory appeal, the judge had refused to allow the federal government the ability to appeal those rulings before trial.

Nor had either the Ninth Circuit or the Supreme Court been willing to come to the federal government’s rescue. The Ninth Circuit had twice denied the Department of Justice’s mandamus petitions to hear their arguments for dismissal before trial. And the Supreme Court in July had rebuffed the solicitor general’s request to stay the trial court proceedings.

Everything shifted, however, on the eve of trial. The case was postponed and its future remains uncertain. Reversing herself in late November, the trial judge agreed to certify the case for interlocutory appeal and the Ninth Circuit has scheduled the case for expedited consideration.

So what happened? What prompted the trial judge to change her mind?

When the justices denied the solicitor general’s request for a stay in July, too little attention was paid to the order’s fine print. While formally denying the government’s requests, the High Court simultaneously left little doubt it believed that the trial judge should have certified the case for interlocutory appeal. The July order set forth the central statutory touchstone for certification — a case raising a “controlling question of law as to which there is a substantial ground for difference in opinion” — and then offered the Court’s clear view that the “striking breadth of the plaintiffs’ claims present substantial grounds for difference in opinion.”

That is why when the trial court failed to take the initial hint and continued to insist on trial, the justices double-downed when the solicitor general a few days before trial filed a mandamus petition with the Court and again asked the justices to stay the trial. This time Chief Justice Roberts immediately stayed the trial to allow the full Court to consider the motion. And, although the Court once again denied the stay request, here again the fine print of the Court’s order left little doubt that it wanted the Ninth Circuit and trial judge to clean up this mess so that the Supreme Court would not have to take the extraordinary step of intervening.

The exclusive reason the High Court gave for denying a stay was not that mandamus was unwarranted but that the Supreme Court need not be the one to grant mandamus because there was good reason to believe the Ninth Circuit would. In Supreme Court-speak, that is about as close as one can get, short of a formal reversal, to the Court telling the Ninth Circuit to fix the problem. The wording was no doubt a compromise reached by the chief and some of more liberal justices seeking to avoid a worse outcome.

The Ninth Circuit plainly got the hint. A few days later, the appeals court stayed the district court proceedings and asked the trial judge to “promptly resolve” the government’s motion to reconsider the denial of interlocutory appeal. And, while insisting that it had not changed “its belief that this case would be better served by further factual development at trial,” the district judge subsequently made clear she understood what she was being asked to do, and certified the case for interlocutory appeal.

Indeed, the entire turnabout was so head-spinning that one of the three Ninth Circuit judges dissented from that court’s decision to hear the appeal. Judge Michelle Friedland wrote she did not believe the trial judge was truly “of the opinion” that interlocutory appeal was warranted but had “felt compelled to make that declaration.”

As disappointed as the plaintiffs no doubt are, I suspect climate litigation has at least for now dodged a fatal blow. Had the lower courts not retreated and the justices been forced to act, it is not hard to imagine the harsh ruling that would have likely resulted in such an extravagant case — with negative repercussions affecting all climate jurisprudence.

It is not hard to imagine the harsh ruling that would have likely resulted.

Climate litigation has at least for now dodged a possibly fatal blow.

Kavanaugh's Ascent Is Enormously Significant for Environmental Law
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
January-February 2019
Issue
1
Richard Lazarus

Justice Brett Kavanaugh. What does his joining the High Court mean for environmental law? How will he differ from Justice Anthony Kennedy, for whom he clerked and now replaces?

Normally, any such comparative inquiry would be hopelessly speculative even when, as here, the new justice has previously served as a federal appellate judge. Most judges, as was true for Neil Gorsuch on the Tenth Circuit, have decided very few environmental law cases.

Kavanaugh, however, is a rare counter-example. The docket of the D.C. Circuit, on which Kavanaugh served for 13 years, includes a heavy dose of environmental law. And, although the three-judge panels for those environmental law cases were decided by random draw, Kavanaugh participated and otherwise wrote in a disproportionately high number, especially Clean Air Act cases. Moreover, because the Supreme Court (including Kennedy) reviewed several of those cases, Kavanaugh’s appellate court record offers a solid basis for gleaning both how he is likely to vote as a justice and how his votes might (or might not) differ from Kennedy’s.

Here’s what environmental lawyers can fairly expect from Justice Kavanaugh. First, he will be a reliable vote against broad readings of EPA’s statutory authority to enact pollution-control regulations. This will be true when the agency is challenged by environmentalists for embracing narrow interpre-tations of its authority. And it will be true when industry challenges EPA for adopting broad interpretations.

In both respects, Kavanaugh will likely mirror the votes of Justice Antonin Scalia when he was on the Court. The difference will be style rather than substance. Kavanaugh will lack Scalia’s bite and bark.

Kavanaugh’s votes on EPA’s regulatory reach will be markedly different from Kennedy’s. While the retired jurist sided with Scalia in many cases, he also departed from him in several significant environmental law cases in which Kavanaugh, had he been on the Court at the time, would have voted differently. Unlike Kennedy, a Justice Kavanaugh would have denied Justice John Paul Stevens the majority he had for the Court’s ruling that the Clean Air Act authorizes EPA to regulate greenhouse gases (Massachusetts v. EPA), he would have provided Scalia with the majority he lacked for his narrow reading of the geographic reach of the Clean Water Act (Rapanos v. United States), and he would clearly have struck down EPA’s interstate air pollution regulation (EPA v. EME Homer Generation LP.), given that the justices, including Kennedy, reversed Kavanaugh’s opinion for the D.C. Circuit on that issue.

For that same reason, many of EPA’s most ambitious regulatory programs adopted during the Obama administration, such as the Waters of the United States Rule, would likely be roughly received with Kavanaugh rather than Kennedy on the Court. The only saving grace for EPA’s Clean Power Plan, should its legality ever somehow reach the justices, is that Kavanaugh would be recused, given his participation in the D.C. Circuit case.

Kavanaugh’s record further suggests a readiness to invoke constitutional law as a basis for limiting the reach of federal environmental law. Most notably, he has frequently invoked constitutional separation-of-powers principles in repudiating broad readings of EPA regulatory authority. According to Kavanaugh, those principles support judicial rejection of congressional delegation of agency authority to address “major issues” absent clear and specific evidence of such legislative intent.

By contrast, Kavanaugh’s views on the Article III standing of environmental citizen suit plaintiffs are not without some ambiguity. His record is less one-sided. But it seems safe to assume that he will be less receptive to such suits than Kennedy. What is unclear is whether he will replicate Scalia’s consistent hostility to citizen standing.

The same is true for Congress’s authority under the Commerce Clause to enact environmental laws. Kavanaugh seems poised to be less sympathetic than Kennedy to a broad reading and there is too little known to speculate whether he will embrace Scalia’s narrow view of Congress’s constitutional reach.

One area of environmental law, however, for which we have no data is Kavanaugh’s views on the regulatory-taking issue. Kennedy was the decisive vote and, over Scalia’s dissent, frequently voted to reject takings challenges to governmental restrictions on development in environmentally sensitive lands. Kavanaugh had no takings cases on the D.C. Circuit (with those cases redirected to the Federal Circuit). If a true originalist like Robert Bork, he will give little credence to regulatory takings claims. But if more of a selective originalist like Scalia, Kennedy’s departure may signal a major shift in the Court’s takings precedent as well.

One thing is clear. Justice Kavanaugh’s confirmation is enormously significant for environmental law.

We know his record.

Kavanaugh's ascent is enormously significant for environmental law.

Kennedy’s Mark on Environmental Law Is Incalculable and Profound
Author
Richard Lazarus - Harvard University
Harvard University
Current Issue
September-October 2018
Issue
5
Richard Lazarus

Even in the midst of a president’s tweeting “breaking news” seemingly every minute of a 24-hour cycle, Supreme Court Justice Anthony Kennedy’s June announcement of his retirement was a bombshell. And for good reason. Kennedy has had outsized influence on the High Court ever since he joined its bench in February 1988.

Kennedy’s impact on environmental law is no exception. Just the opposite. It deservedly adds an exclamation point to descriptions of the justice’s historic significance to the law in general.

Since Kennedy joined the Court, the justices have decided approximately 100 environmental law cases. Kennedy was in the majority in all but two of those cases and the Court subsequently overruled its ruling in one of those (Pennsylvania v. Union Gas) in Seminole Tribe of Florida v. Florida. The only remaining case in which Kennedy’s vote did not reflect the outcome was Alaska v. EPA, when he dissented from the ruling that the agency had lawfully rejected a state-issued Clean Air Act permit.

That’s it. In every other case, how Kennedy voted foreshadowed the High Court ruling. To be sure, not all those cases were five to four. Some were unanimous, meaning that Kennedy’s vote was not determinative. But many others did turn on the vote of a single justice, including many of the Court’s most significant environmental rulings.

A quick review of the most important environmental cases underscores Kennedy’s significance. For instance, although the justice plainly harbored a wariness of regulatory overreach, he did not reflexively shy away from respecting statutory language that backed EPA’s broad authority. He supplied the critical fifth vote in support of the Court’s historic ruling in Massachusetts v. EPA, when the Court upheld the agency’s authority to regulate greenhouse gas emissions under the Clean Air Act.

More recently, Kennedy voted with the majority in EPA v. EME Homer Generation L.P. to sustain the agency’s Cross State Air Pollution Rule, one of its most significant regulatory programs ever. The rule curbed pollution in 27 upwind states that were causing violations of air quality standards in downwind states. The D.C. Circuit had struck down the EPA rule on the ground that it lacked sufficient congressional authority. Yet Kennedy sided with the agency when the case reached the Court. Because Judge Brett Kavanaugh authored the lower court ruling averse to EPA, the EME Homer case will no doubt be discussed during his Senate confirmation hearings this fall.

Justice Kennedy’s influence on the geographic scope of the Clean Water Act was no less momentous. He deprived Justice Antonin Scalia of a majority in Rapanos v. United States. Kennedy rejected Scalia’s rigid, dictionary definition of “waters,” which would have dramatically cut back on the act’s reach. In its stead, Kennedy proposed his version of a “significant nexus” test, which embraced a far more expansive view of the law’s jurisdiction.

But these statutory-construction cases are not necessarily the most significant environmental law decisions in which Kennedy’s voice dominated the Court. The justice appreciated the need for tough environmental restrictions necessary to protect especially fragile ecosystems such as wetlands, floodplains, and coastal areas. That understanding was reflected in a series of cases in which Kennedy blocked Scalia’s efforts to place significant constitutional limits on environmental law’s reach.

Kennedy rejected Scalia’s attempt to limit Article III standing to enforce federal environmental law in both Friends of the Earth v. Laidlaw and again in Massachusetts v. EPA. He explained in Lujan v. Defenders of Wildlife that the demands of environmental protection meant that citizens should be able to satisfy Article III standing requirements based on allegations of causation and redress more attenuated than that contemplated by the common law.

On similar grounds, Kennedy likewise impeded Scalia’s effort to impose a Fifth Amendment regulatory takings test that would have rendered unconstitutional state and federal laws that restrict development in environmentally sensitive areas. Kennedy reasoned that government should be able to restrict such destructive activities without offending the no-takings guarantee even when, contrary to Scalia’s claim, they would not amount to common law nuisances or otherwise transgress background principles of property law.

Of course, Kennedy was not an uncompromising environmentalist. He was a moderate who cared deeply about states rights, property rights, and excessive regulation. His votes and opinions reflect those longstanding concerns as well. That is why he was dubbed the swing justice, a label that Kennedy rejected but was nonetheless apt. Unlike some others on the Court, Kennedy’s vote was always in play precisely because his contrasting perspectives on environmental law and other critical social issues affected by the law meant he did not come to cases with his mind already made up.

Kennedy’s mark on environmental law is incalculable and profound.

The Debate: Chevron Enshrined Deference to Agencies. Will Supreme Court Neuter It?
Current Issue
September-October 2017
Issue
5
The Debate

HEADNOTE ❧ The Supreme Court’s decision in Chevron v. NRDC has been at the heart of environmental law and administration law generally. But even before the ascension of Neil Gorsuch to the High Court, there were signs that the justices were looking on deference with skepticism.

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