67. Making Sense of the "Good Neighbor" Applications

A rare oral argument on emergency applications challenging Biden administration pollution rules underscores how much earlier the justices are taking up complex legal disputes—and the costs of doing so

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Every Monday (including holidays, like today), I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

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On the Docket

As expected, the biggest headline out of the Court last week was the emergency application filed by former President Trump seeking to keep the January 6 prosecution on hold while he appeals the D.C. Circuit’s unanimous rejection of his claim that the Constitution immunizes him from such a trial. But Friday came and went with no ruling from the justices, which means the next realistic opportunity is sometime tomorrow (the Court is closed today for Presidents’ DayWashington’s Birthday). There’s no guarantee that we’ll get a ruling tomorrow (let alone this week), but especially if the Court is inclined to grant the stay while expediting Trump’s appeal, that order ought to come sooner, rather than later. And although we also expect a “regular” Order List at 9:30 ET tomorrow (based on actions taken at last Friday’s Conference), a ruling on Trump’s application is more likely to come down as a “miscellaneous” order—at some random time, and with no public warning.

The Court also announced last week that this Wednesday, February 21, “may be” an opinion day. That almost certainly means we’re getting one or more decisions in argued cases starting Wednesday at 10:00 a.m. ET, perhaps including a ruling in the Colorado disqualification case. But there’s just no way to have any confidence about which decisions we expect (even for an expedited case, Wednesday would be fast for Colorado), and we won’t know anything more until they drop.

The only order out of the full Court last week was a housekeeping order relating to the upcoming argument session. But Justice Alito, acting individually as circuit justice for the Third Circuit, also issued an “administrative” stay on Friday—temporarily pausing the Boy Scouts bankruptcy while the full Court decides whether to keep it on hold while one group of claimants appeals from an adverse Third Circuit ruling.

For those who follow the Court … closely, Alito’s “administrative” stay is noteworthy in two respects: First, the stay is indefinite—unlike prior administrative stays from Justice Alito that imposed arbitrary deadlines, several of which the Court didn’t meet (the norm for every other justice besides Justice Thomas is for indefinite administrative stays; perhaps this is a sign that Alito is moving in that direction). Second, by my count, in the five previous cases since last April in which Justice Alito has issued an administrative stay, he publicly dissented from the full Court’s ultimate ruling respecting four of them. We’ll see if history repeats this time around, probably by the end of this week.

The Court last week also issued its April argument calendar, which includes some high-profile cases but also has three open slots—even though the Court has cases to fill them with (which will now get pushed to October). Whether that’s with an eye toward a potential argument in the Trump immunity case (one of the slots is the same day as the argument in Fischer about the scope of a federal obstruction statute regularly used in January 6 prosecutions), or just a more general sense that the Court has more than enough on its plate already, it’s an interesting way to close out the term.

Turning to this week, the Court’s February argument session kicks off tomorrow at 10 ET. In addition to the major environmental law applications the Court is hearing on Wednesday (more on those below), the highlight of the session may well be next Monday—when the justices consider a pair of First Amendment challenges to Florida and Texas laws restricting content moderation by social media companies. In all, it’s shaping up to be a busy fortnight at One First Street, N.E.

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The One First “Long Read”: Like a Good Neighbor…

As noted above, one of the two arguments that the justices will hear this Wednesday involves four consolidated emergency applications, all of which challenge the Biden administration’s “Good Neighbor” plan for reducing ozone emissions in certain states. Wednesday’s argument will be just the third time since 1971 that the full Court has heard oral argument on an emergency application (the first two were the January 2022 arguments in the OSHA and CMS COVID vaccination cases). And given both the odd procedural posture of the argument and the decidedly premature context in which the underlying legal questions are reaching the justices, it’s potentially a reminder of why, all things being equal, the Court claims to prefer (and is usually better off) waiting for litigation to finish working its way through the lower courts before the justices weigh in.

At the heart of Wednesday’s dispute is a provision of the Clean Air Act (CAA), 42 U.S.C. § 7410(a)(2)(D), which requires upwind states to ensure that their emissions do not interfere with the ability of downwind states to meet federal air-quality standards. That section is known as the “Good Neighbor” provision. After the EPA in 2015 updated the federal standards for ozone pollution, the CAA automatically required “upwind” states to submit, within three years, updated plans demonstrating how they planned to comply with the revised standards—including with respect to the effects that ozone pollution in their states would have on downwind states.

21 states responded to the new federal standards by proposing no changes to their state ozone emissions plans (two more didn’t even file a new state plan). In February 2023, the EPA rejected the 21 state plans that argued that existing measures were sufficient. Those rejections, in turn, triggered not just federal authority, but a federal obligation, to ultimately adopt a federal plan to fill the gap. This the EPA did in March 2023. That rule, known as the “Good Neighbor Plan,” initially applied to the 23 states with either no new plan or no changes to their plans.¹ Among other things, as a helpful Congressional Research Service report explains, the federal plan “establishes an emissions trading program for power plants and imposes requirements on certain other industrial sources” to help ensure that the 2015 standards are satisfied by large polluters in the covered states. In essence, the Good Neighbor Plan imposes an array of ozone emissions caps on upwind states, although exactly how those caps work is tricky. (The CRS report goes into these requirements in much more detail, and I’d encourage interested readers to check that out.)

Here’s where things get complicated (if they weren’t already): A number of states whose plans were rejected brought an array of suits in seven different regional court of appeals, challenging the EPA’s actions in rejecting their state plans (let’s call these the “State Plan Cases”). In those cases, all seven circuits issued temporary stays of the EPA’s disapprovals—putting the relevant state plans into effect pending final resolution of the states’ legal claims (which has yet to happen in any of those cases). In all, though, those stays cover only 12 states; so there are at least 10 states to which the EPA’s 2023 Good Neighbor Plan still applied after those interim federal appellate rulings.²

Then, six states (and an array of trade associations, industry groups, and other private parties) brought suit directly in the D.C. Circuit, challenging the federal Good Neighbor Plan (the “Federal Plan Case”).³ The essence of the claim in the Federal Plan Case is that the Good Neighbor Plan is unlawful largely because the EPA’s predicate rejections of the state plans were themselves unlawful—and the EPA is bootstrapping its way into an unauthorized national rule by wrongly rejecting individual states’ efforts. There are also a series of narrower, fact-bound challenges to different features of the Good Neighbor Plan, but I won’t go into those here. A number of other groups and downwind states intervened in the D.C. Circuit on the federal government’s side—in defense of the Good Neighbor Plan.

The petitioners in the D.C. Circuit asked the court of appeals for a stay of the Good Neighbor Plan pending (that is to say, at the outset of) its resolution of their lawsuit. On September 25, 2023, the D.C. Circuit denied that application, albeit by a 2-1 vote (Judges Pillard and Childs were in the majority; Judge Walker dissented). As relevant here, neither the majority nor the dissent offered any explanation for their votes; the order was summary.

From there, Ohio, two other states, and most of the private petitioners in the D.C. Circuit sought emergency relief from the Supreme Court. Although their petitions were filed on October 18 (or shortly thereafter), the Court didn’t act on them until December 20, at which point all the Court did was to “defer resolution” of them pending oral argument—which, curiously, the Court scheduled for the February (as opposed to January) argument session.⁴

In other words, the Supreme Court is hearing oral argument on Wednesday on emergency applications that were filed over four months ago, on a question (whether the Good Neighbor Plan is lawful) on which no federal court has yet to say even a single word, and the answer to which turns, at least to a significant degree, on the outcome of other pending litigation (the challenges to the EPA’s state plan disapprovals) that is not yet final. To be sure, the petitioners offer arguments against the Good Neighbor Plan that go beyond what happens in the State Plan Cases. But their strongest claims depend heavily on those pending circuit court rulings holding up—and on that being enough to call the federal plan into question even as applied to states that are not covered by one of the existing stays. (This last point is the one issue the justices specifically directed the parties to be prepared to address at oral argument.) Tellingly, none of the arguments in the applications go to major questions of constitutional law or statutory interpretation; this isn’t a referendum on the “major questions doctrine.” Instead, whatever its practical and economic stakes, the legal dispute undergirding these applications is rather modest and context-specific.

To that end, whatever one thinks about the cooperative federalism contemplated by the Clean Air Act, specifically, or about environmental law, in general, it’s a remarkably strange set of emergency applications for the Court to indulge at all—let alone to hold oral argument on, given both the lack of urgency and the profound uncertainty surrounding the broader (fact-driven) litigation context in which these particular applications have arisen. And although I take it as a good sign that the Court chose to hold argument rather than simply grant the applications based solely on the papers (and yet another sign that the justices are moderating at least some of their behavior on emergency applications), it does seem to dovetail with a broader phenomenon that I’ve discussed in prior issues of this newsletter—and that is the subject of a new draft essay that I’ve posted to SSRN (which is forthcoming in the December 2024 issue of the Harvard Law Review).

In a nutshell, the problem these cases reflect is the remarkable uptick in both the raw number and percentage of cases in which the justices are reaching the merits at early—if not affirmatively premature—stages of litigation. For a Court that regularly insists that it is “a court of review, not first view,” the last few years have seen a remarkable transformation in the Court’s docket—with the Court regularly (1) reaching the merits on appeals from grants or denials of preliminary injunctions; (2) granting certiorari before judgment to leapfrog federal courts of appeals; and (3) resolving merits questions in the few opinions the Court has issued accompanying grants or denials of emergency applications. Historically all three of these categories of decisions were (and were supposed to be) rare. But as the essay demonstrates, they’ve become a remarkably common feature of the Court’s docket—without any explanation from the justices defending (or even acknowledging) this shift, or accounting for any of its (many) potential costs.

Folks who’d like to read more can download the draft here. But the “Good Neighbor” cases are, to me, a paradigmatic example of the problem—not because I have an especially strong view as to how the underlying environmental law questions should be answered, or whether, at a more basic level, the EPA acted appropriately in these cases, but because however those questions are resolved, it would have been unthinkable as recently as a decade ago that the Supreme Court would be resolving them at this juncture. It will always be possible to conjure real or hypothetical cases in which the justices should step in at the earliest possible moment. But the more that the Court has routinized the practice of doing so, the more we’ve lost sight of both how and why those cases are supposed to be the exception, not the rule. It’ll be interesting to see if this concern comes up at all during Wednesday’s (unusual) argument.

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SCOTUS Trivia: President Washington’s Court

Last Thursday’s bonus issue reflected my effort to debunk the silly claim that this is former President Trump’s Court—and that the three justices he appointed are likely to go out of their way to accommodate him in the Colorado disqualification and January 6 immunity cases. But even if this isn’t Trump’s Court, the Supreme Court for a time clearly was President Washington’s Court—given that the first President got to appoint all six justices in 1789, and then made five more appointments across his two terms, for a record of 11. Indeed, it wouldn’t be until November 9, 1798, that a single justice would be appointed by a different president. And even that justice was … President Washington’s nephew, Bushrod.

Some of the Washington SCOTUS trivia (like the 11-appointment record) is pretty straightforward. But here’s a harder one: Which of Washington’s 11 appointees was the last to leave the Court?

The answer, by about nine months, is Justice Samuel Chase (yes, the same one who remains, to this day, the only justice to be impeached). After his Senate acquittal, Chase served until his June 19, 1811 death—outlasting fellow Washington appointee William Cushing, who served until his death in September 1810. Cushing, though, holds the claim to the longest serving justice among Washington’s appointees—having sat on the Court for 20 years and 223 days. (Cushing was also the only one of Washington’s six original appointees to the Court who served past 1799.)

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Until then, happy Monday, everyone! I hope that you have a great week.

1. In addition to the 21 states whose new plans included no changes, two states did not even bother to submit the federally mandated revised plan.

2. It would be 11, but the EPA approved Wyoming’s plan in December.

3. Two cases were initially brought elsewhere, but were transferred to the D.C. Circuit where they were consolidated into a single dispute.

4. In the OSHA and CMS COVID vaccination cases, the Court didn’t even wait for the next argument session; rather, on December 22, 2021, the Court ordered an extraordinary Friday argument session for 16 days later—on January 7, 2022.