In a term already defined by abortion and guns, the justices on Friday agreed to hear two more politically divisive disputes, involving the Environmental Protection Agency’s authority to regulate greenhouse gases and the ability of states to defend a Trump-era immigration rule that the Biden administration has declined to defend.
Climate change regulation
The litigation over the EPA’s authority comes to the court in a quartet of environmental cases on appeal from the U.S. Court of Appeals for the District of Columbia Circuit. The D.C. Circuit vacated both the Trump administration’s decision to repeal the 2015 Clean Power Plan, which established guidelines for states to limit carbon dioxide emissions from power plants, and the Affordable Clean Energy Rule that the Trump administration issued in its place.
Urging the justices to hear the case, one of the challengers, the North American Coal Corporation, acknowledged that the issue of climate change and how to address it has “enormous importance,” but the company stressed that “[t]hose debates will not be resolved anytime soon.” What the court should resolve, it continued, “as soon as possible is who has the authority to decide those issues on an industry-wide scale — Congress or the EPA.” Unless the justices weigh in, the company warned, “these crucial decisions will be made by unelected agency officials without statutory authority, as opposed to our elected legislators.”
The Biden administration told the justices that there was no need for them to step in now, because the Clean Power Plan “is no longer in effect and EPA does not intend to resurrect it.” Instead, the government explained, it intends to issue a new rule that takes recent changes in the electricity sector into account. “Any further judicial clarification of the scope of EPA’s authority,” the government suggested, “would more appropriately occur” after the agency has actually issued the new rule.
After considering the cases at four consecutive conferences, the justices granted review and ordered the cases to be argued together. The justices’ decision in the case, which is expected by summer 2022, could have an impact well beyond environmental law because it could impose new limits on Congress’ ability to delegate authority to all regulatory agencies.
Immigration policy and state intervention
In Arizona v. City and County of San Francisco, the justices agreed to decide whether a group of states, led by Arizona, can defend a contentious Trump-era immigration policy known as the “public charge” rule after the Biden administration declined to do so.
The dispute over the rule is one with which the justices are very familiar. The rule broadened the definition of “public charge,” a term in immigration law for people who are ineligible for a green card if the government believes that they are likely to rely too heavily on government aid. Several challenges to the new rule followed, and after two federal courts of appeals ruled in favor of the challengers in those cases, the Trump administration asked the justices to review those rulings. But after the justices had agreed to take up a case from the U.S. Court of Appeals for the 2nd Circuit, the Biden administration told the justices that both it and the challengers had agreed to dismiss the case.
The justices in April turned down an effort by Republican-led states to revive the litigation over the public charge rule. However, the court left open the possibility that the states could go back to the lower courts to make the same arguments that they had made in the Supreme Court, and return to the Supreme Court if possible.
Thirteen states, led by Arizona, then sought to intervene in the U.S. Court of Appeals for the 9th Circuit to pick up the defense of the rule in hopes of getting it reinstated. A divided court of appeals denied the states’ motion. The states came to the Supreme Court in June, seeking review of that denial. The states argued that the “coordinated dismissals” of the challenges to the public charge rule “set out a dangerous path for future administrations,” allowing the Biden administration to effectively rescind the rule without going through the process required by law.
The Biden administration urged the justices to stay out of the case, telling them that the appeal in which the states want to intervene is moot – that is, no longer a live dispute – because the 2019 rule is no longer in effect. And in any event, the government added, the states’ argument that the federal government’s decision not to defend the rule would be financially costly to them, so that they have the kind of interest in the dispute that should allow them to join the case, “is, at best, speculative.”
In a brief order on Friday afternoon, the justices turned down the states’ request to weigh in on the legality of the public charge rule itself or whether the 9th Circuit’s decision holding that the public charge rule likely violates the law is now moot. Instead, the justices agreed to decide only the first question presented by the states’ petition: whether states with an interest in the dispute should be allowed to intervene to defend a rule when the United States is no longer doing so.
More orders from Friday’s conference are expected on Monday morning at 9:30 a.m.
This post is also published on SCOTUSblog.