Bonus 79: A Seven-Month-Long Emergency?

The Supreme Court may decide the "Good Neighbor" ozone pollution emergency applications as early as today. It says quite a lot about the "emergency" docket that it's taken this long.

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As I noted on Monday, the Supreme Court is set to hand down decisions in some (likely 1–4) of the cases argued earlier this term at 10:00 ET this morning. And although we don’t know what’s coming, it’s distinctly possible that one of the rulings will come in the “Good Neighbor” ozone pollution cases, which I wrote about in detail back in February. What’s remarkable about the “Good Neighbor” cases, which will likely be decided under the caption of the first-filed application, Ohio v. EPA, is how long they’re taking. Today marks 209 days since the applications were filed, and 78 since they were argued. Although that’s not long by any stretch for merits cases, these aren’t; they’re emergency applications the entire premise of which is supposed to be that there is some irreparable harm impelling the justices to act quickly while litigation proceeds in lower courts. No matter what the Court ends up deciding in Ohio v. EPA, the fact that it’s taken this long only lends credence to a charge that at least some of the justices have recently tried to rebut—that the “emergency” docket is increasingly a place for the Court to not just grant or deny emergency relief, but to reach and decide the merits of certain cases without the usual process.

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