As the Supreme Court gets ready to issue the final rulings of the term, the justices are still sitting on a handful of cases that could deal a blow to environmental protections and agency powers.
In four decisions expected by next week, the justices could toss out EPA controls on cross-state smog pollution, expose old rules to new lawsuits, stifle agencies’ power to handle their own enforcement cases and demolish a 40-year-old doctrine that helps environmental regulators win in court.
The cases are among about a dozen decisions that are still pending from the Supreme Court — and many of those opinions will have a profound effect on the U.S. public and politics, wrote Michael Waldman, president of the Brennan Center for Justice in a recent analysis.
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“Brace for impact,” he said.
Here’s what to know about the Supreme Court’s pending environmental rulings.
1. Loper Bright v. Raimondo and Relentless v. Commerce
In two of the most closely watched cases of the term, the justices could answer calls from conservative lawyers to strike down a legal doctrine that helps federal agencies defend public health, safety and environmental regulations in court.
For 40 years, agencies like EPA have used the Chevron doctrine to argue that courts should yield to regulators’ reading of uncertainty in statutes like the Clean Air Act — as long as their interpretations are reasonable.
But in recent years, Chevron has quietly fallen out of favor with the conservative-dominated Supreme Court. Some justices have vocally advocated for ending the doctrine.
The doctrine is still in use in the lower courts. Loper Bright and Relentless arise from federal appeals court rulings that applied Chevron to uphold a NOAA Fisheries requirement that herring vessels pay the salaries of onboard monitors who protect against overfishing.
Justice Ketanji Brown Jackson recused herself from Loper Bright, due to her involvement in the case when it was before a lower court, but she is participating in Relentless. The cases were argued on the same day and could be decided together.
2. Corner Post v. Federal Reserve
The consequences of Chevron’s demise could be amplified if the justices decide in a separate case to open old federal rules to new legal challenges.
At issue in Corner Post is a six-year statute of limitations under the Administrative Procedure Act for parties to sue over federal rules. Owners of a North Dakota convenience store and truck stop argue in the case that they should be able to challenge a 2011 rule on debit card swipe fees — because their business did not exist until after the APA deadline had passed.
During arguments in Corner Post, some justices questioned how their ruling in the case might interact with their decision on Chevron. Some members of the court had raised concerns during Loper Bright and Relentless that ending the doctrine would reopen at least 77 Supreme Court cases that have been decided on Chevron grounds in the last 40 years.
Challengers in Corner Post, Loper Bright and Relentless sought to assure the court that a victory for their side would not revive legal fights on long-settled issues. Parties fighting to preserve the APA deadline and Chevron say the cases threaten to upend the regulatory regime.
3. Securities and Exchange Commission v. Jarkesy
In a battle over in-house judges at Wall Street’s top regulator, the Supreme Court could also topple the power of agencies like the Interior Department and Federal Energy Regulatory Commission to handle enforcement cases against polluters and pipeline builders.
During oral arguments in November, the justices seemed open to arguments from hedge fund manager George Jarkesy that the federal courts — and not the SEC — should oversee allegations that he lied in audits and misrepresented investments.
Jarkesy has already rippled through enforcement proceedings and litigation involving the Rover gas pipeline, which faces millions of dollars in fines for allegedly lying about removing a historic farmhouse and contaminating an Ohio river.
The challenge also raises claims under the nondelegation doctrine, which says Congress cannot hand too much power to federal agencies. The doctrine was last used in 1935, although some conservative justices have recently shown interest in reviving it.
The justices did not address nondelegation issues during the Jarkesy arguments.
4. Ohio v. EPA
The Supreme Court has waited to the last minute to decide a case on its emergency — or “shadow” — docket that could stymie EPA efforts to curb smog-forming pollution that drifts across state borders.
Red states, power plant operators and gas pipeline companies asked the justices to block EPA’s “good neighbor” rule for 23 states after the agency froze requirements for some participants.
During February arguments, the justices — particularly Brett Kavanaugh, who as a judge of a lower court struck down an earlier EPA good neighbor rule — appeared receptive to the challengers’ claims.
Liberal justices meanwhile questioned whether the challenge was properly raised on the emergency docket, which has traditionally been the place for the justices to reach quick decisions on noncontroversial matters.
In recent years, however, the court has used the docket for much more substantial decisions that divide the justices, starting with its 2016 order temporarily blocking the Obama administration’s Clean Power Plan.
As a result of the court’s emergency order, the Obama power plant rule never took effect.
The Supreme Court is expected to issue rulings Thursday and Friday. The justices have not said whether they will finish releasing decisions Friday.
