92. How Ohio v. EPA Reshapes Equitable Relief

Along the way to tossing out the Biden administration's ozone pollution efforts, the Supreme Court quietly (and wrongly) reshaped how *all* federal courts should analyze requests for equitable relief

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, I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); 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): 

This week’s “Long Read” continues my efforts to look back at the major decisions the Supreme Court handed down in cases argued during the October 2023 Term—this time, with a special focus on the June 27 ruling in Ohio v. EPA, in which a 5-4 majority threw out the Biden administration’s “Good Neighbor” ozone pollution rule.

The decision has generally been lumped in with the Court’s other major administrative law rulings from the end of OT2023, and for good reason: Justice Gorsuch’s majority opinion takes a remarkably aggressive view of the role of courts in second-guessing how agencies respond to public comments—and all-but makes up some of the problems on which it relies.

There are two other holdings in Ohio that have not yet received much, if any, public attention—and that could have even broader implications for how federal courts in general handle requests for equitable relief in all cases. What’s more, much like the actual “merits” holding in Ohio, neither of the Court’s conclusions on this point withstand scrutiny. They’re the focus of this week’s newsletter.

But first, the news.

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On the Docket

The Supreme Court took no action last week on any of the four big pending emergency requests that I discussed in detail in last Thursday’s bonus issue. The Court issued only a single order—appointing a lawyer to defend the Fifth Circuit’s decision in a pair of consolidated federal criminal sentencing cases the justices are set to hear next term, because the federal government agrees with the petitioners that the Fifth Circuit’s interpretation was wrong. (In a future issue, I’ll write about the phenomenon of the Court appointing lawyers to defend lower-court decisions when the federal government confesses error after winning below; it’s more than a little odd, but it isn’t unusual.)

Perhaps the biggest news out of the Court last week instead came from the Ninth Circuit Judicial Conference in Sacramento—where Justice Kagan, there in her capacity as Circuit Justice for the Ninth Circuit, publicly spoke out in favor of having a rotating panel of lower-court judges review the justices’ recusal decisions (and perhaps some other ethics-related disputes). I’m planning to say more about Justice Kagan’s remarks in the near future (depending upon the news, perhaps as early as this Thursday’s bonus issue). But it seems more than a little significant that Kagan is choosing to say certain things publicly now that she has (presumably) thought for some time...

Turning to this week, it’s quite likely that we’ll hear from the Court on at least two of those pending emergency requests—Alaska’s application in one of the student loan cases and the Biden administration’s two applications seeking to unblock most of the Department of Education’s new rule on Title IX, which is supposed to go into effect this Thursday. I also expect Chief Justice Roberts will, sometime later today, order the federal government to respond to the four applications challenging the EPA’s latest carbon emission regulation efforts—although it’s hard to imagine those being resolved before next week at the earliest. And at some point, the Court will presumably deny Missouri’s request for a stay (and for leave to file an original action) against New York’s ongoing criminal prosecution of former President Trump.

We also expect some Court-related news today when President Biden speaks at the LBJ Presidential Library at the University of Texas as part of an event commemorating the 60th anniversary of the signing into law of the Civil Rights Act of 1964. According to lots of media reports, Biden will use the occasion to unveil the push for Supreme Court reform that the Washington Post scooped earlier this month—and about which I was more than a little skeptical in the July 18 bonus issue. I hope he surprises us, but I’m not holding my breath.

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The One First “Long Read”:
Reshaping Equitable Relief

I’ve written before about the odd way in which the Supreme Court agreed to take up, and then decided, Ohio v. EPA—the biggest environmental law ruling of the term. In a nutshell, the case came to the Court, much like the pending applications in West Virginia v. EPA, as four emergency applications seeking a “stay”¹ of an EPA regulation while the applicants sought to challenge that rule—a challenge that had been filed, but that had not progressed very far, in the D.C. Circuit (these kinds of cases bypass district courts, and “begin” in the D.C.-based federal appeals court). Rather than resolve the emergency applications with any dispatch, the justices fought over them internally for three months; eventually agreed to hold a not-very-expedited oral argument (without, it should be noted, another round of briefing); and then sat on them for another four months before resolving them in a signed opinion by Justice Gorsuch for a 5-4 majority.

The top-line takeaway from that majority opinion is that the Court blocked the EPA’s “Good Neighbor” nationwide ozone pollution standards—largely on the ground that the agency had acted arbitrarily and capriciously in violation of the Administrative Procedure Act in how it went about soliciting and responding to public comments on the proposed rule. Justice Barrett, joined by Justices Sotomayor, Kagan, and Jackson, dissented—pointing out the myriad ways in which the Court could only find improper procedural shortcuts by … making them up. As Barrett explained, “While the Court suggests that the EPA failed to explain itself sufficiently in response to comments, this theory must surmount sizable procedural obstacles and contrary record evidence.” Barrett’s dissent, which is worth reading in its entirety, closed by suggesting that the majority’s errors were compounded by the fact that these cases were emergency applications—“without the benefit of full briefing and reasoned lower court opinions. Given those limitations,” she concluded, “we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions.”

In fact, the majority opinion is even more problematic than that. As much violence as it does to how agencies are supposed to handle notice-and-comment rulemaking, it also quietly adopts two new principles for equitable relief that the Court had been leaning toward in prior cases, but that Ohio is the first majority opinion to make explicit. And those principles will both have even broader—and even more problematic—implications.

First, there’s how the majority opinion “balances” the irreparable harm claimed by both sides—those challenging the “Good Neighbor” rule, and the federal government defending it:

Because each side has strong arguments about the harms they face and equities involved, our resolution of these stay requests ultimately turns on the merits and the question who is likely to prevail at the end of this litigation.

That’s it, and that’s all. There’s no effort to actually weigh the harms claimed by the two sides, or to compare them to see if one set of harms is clearly more substantial than the other; so long as “each side has strong arguments,” the equities … are a wash. I was mildly apoplectic when Justice Kavanaugh embraced this position in his concurring opinion respecting the Court’s order putting back into effect most of Idaho’s ban on gender-affirming care for transgender adolescents. But here, without the benefit of any briefing (the last briefing in this case happened last fall), the majority adopts this view without any detailed analysis.

Thus, Ohio now stands for the proposition that equities balancing is no longer required so long as both sides presents “strong” arguments in favor of their view of the equities. That’s just nuts. The whole point of balancing the equities is to consider which harm is greater, as part of a calculus (which includes but isn’t exclusively governed by the merits) of what the status quo ought to be while litigation proceeds. Except, not anymore, according to this one undefended sentence in the Ohio opinion. Now, any party seeking equitable relief can overcome really strong equities favoring the other side simply by showing that they have “strong arguments” of their own, no matter how relatively weak those arguments may be compared to the harms that they’re arguing for. That portends a massive reconfiguration of equity—and one that will have implications far beyond emergency applications in the Supreme Court. (To be fair, this is also a critique of the unsigned 2022 majority opinion in the OSHA vaccination case—except the majority there wasn’t nearly as explicit about what it was doing.)

Second, as if that wasn’t bad enough, Justice Gorsuch’s majority opinion also adopts a view that he and Justice Kavanaugh had both embraced in their separate opinions in the Idaho case, but that had not yet received explicit recognition by the majority—that states suffer irreparable harm whenever the federal government (including federal courts) take action that “necessarily impairs their sovereign interests in regulating their own industries and citizens.” I’ve written before about this idea—for which Gorsuch cited a 2012 in-chambers opinion by Chief Justice Roberts, which itself relied upon a series of late-1970s in-chambers opinions by then-Justice Rehnquist. At its core, the root of the argument that states are irreparably harmed whenever their regulations are blocked is then-Justice Rehnquist’s under-explained reliance upon the “presumption of constitutionality.” But given how limited that presumption actually is in practice (it doesn’t apply to executive branch actions; and it is supposed to give way in the face of colorable constitutional objections), it just doesn’t support, in general, the idea that states are irreparably harmed whenever their laws are blocked.

There have been majority opinions in the past that came very close to embracing this view. But Ohio goes one step beyond not just those prior opinions of the Court, but even the earlier in-chambers opinions by Rehnquist and Roberts. In Ohio, Justice Gorsuch’s majority opinion uses this principle to justify a finding of irreparable harm to Ohio not from a federal injunction, but from federal regulation itself (the full quote is “the States observe that a FIP issued unlawfully (as they contend this one was) necessarily impairs their sovereign interests in regulating their own industries and citizens”). In other words, it is a fair reading of the majority opinion in Ohio that states will be able to demonstrate irreparable harm when their laws are not just blocked by federal courts, but preempted by federal regulations—even valid ones that necessarily preempt those state laws under the Supremacy Clause.

If that holds, it will tilt the scales of equitable relief radically in favor of states in most litigation with the federal government—which, as you might have noticed, has become increasingly common in recent years. Meanwhile, it also turns the presumption of constitutionality on its head—because now, the presumption of constitutionality respecting the state’s actions ends up effectively overriding whatever presumption of constitutionality should have applied to the federal government’s actions. And insofar as the response is that both actors are entitled to that presumption, that just doesn’t hold up—again, because of preemption and the Supremacy Clause.

I realize that these are pretty technical points about legal principles that are already more than a little esoteric. The upshot is that both of these holdings are of tremendous potential significance to all equitable relief in the federal courts—because neither is limited to the unique contexts of (1) emergency relief; (2) in the Supreme Court; (3) in an environmental law case.

That’s all the more striking when you consider, again, that both holdings were adopted in a majority opinion respecting emergency applications—in which the Court had only limited briefing (at the application stage), and sought no additional filings even after it agreed to hold oral argument. If and when Congress turns to the project of cleaning up even some of the myriad ways in which the Supreme Court in recent years has messed up long-settled standards of review without adequate justification (which would be a far more productive focus for Court reform than what I expect we’ll hear from the President later today), hopefully, these will be two of the things it fixes.

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SCOTUS Trivia: Justice Goldberg “Retires”

Given the overlap between SCOTUS and LBJ today (thanks to President Biden’s remarks later this afternoon), today’s trivia is also LBJ-themed.

I’ve written before about the maneuvering in which President Lyndon Baines Johnson engaged to generate a vacancy on the Supreme Court in 1967—all so that he could name Thurgood Marshall to be the Court’s first Black justice. But last week was the (59th) anniversary of the earlier of LBJ’s vacancy-generating plots—his July 1965 scheme to create a vacancy into which he could appoint his close friend (and longtime lawyer) Abe Fortas. This time around, his target was Justice Arthur Goldberg—who had only joined the Court at the beginning of its October 1962 Term, filling the “Jewish” seat previously occupied by Justice Felix Frankfurter. (At the time of his nomination, Goldberg was serving as Secretary of Labor—and he remains, as of today, the last justice to have served in the Cabinet.)

As the story goes, Johnson wanted Fortas on the Court in order to have more insight into how the most significant Great Society programs would fare. And so he promised/cajoled Goldberg into accepting an appointment as U.S. Ambassador to the United Nations—where he and Goldberg both apparently thought the latter could help bring about a swift and peaceful resolution to the burgeoning conflict in Vietnam. What is less clear, although long rumored, is that LBJ promised Goldberg that, on the far side of his ambassadorial service, he’d be reappointed to the Court—perhaps as successor to Chief Justice Warren himself. Not only did that never come to pass, but Johnson’s failed effort to replace Warren with Fortas also helped to precipitate Fortas’s resignation from the seat previously held by Goldberg in May 1969—the very last day on which a majority of the Court had been appointed by Democratic presidents.

After leaving government service, Goldberg returned to private practice—including appearing before the Supreme Court in the landmark 1972 Flood v. Kuhn (baseball) antitrust case. As my Georgetown colleague Brad Snyder recounts in his wonderful book about Curt Flood, one lawyer in the courtroom characterized Goldberg’s appearance as “one of the worst arguments I'd ever heard—by one of the smartest men I've ever known.”

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Regardless, I hope you have a good—and safe—week.

1. It continues to baffle me why the Court refers to orders that block executive branch actions as “stays,” rather than as what they effectively are, i.e., “injunctions.” For much more on this point, and how it should further constrain the justices’ ability to intervene in cases like Ohio, see Thomas Koenig’s excellent student note in the May 2024 issue of the Harvard Law Review, “Halting Administrative Action in the Supreme Court.”