Last weekend's release of internal Supreme Court memos continues to prompt commentary--too little of which puts the substance of the memos in appropriate context. I have tried to address some of this with my prior posts on the papers and the leak.
As someone who focuses on administrative and environmental law, I think it is important to recall what was occurring when the Court received these applications. Having failed to get climate change legislation enacted, the Obama Administration was working aggressively to retrofit the Clean Air Act to greenhouse gas emission control. Its most significant prior effort in this regard--the so-called "Timing and Tailoring Rules"--were breathtakingly audacious. The EPA not only asserted the authority to rewrite the statute's numerical emission thresholds, it also sought to do so in a way that would be immune from judicial review. This worked in the D.C. Circuit, but not in the Supreme Court, which rejected most of the EPA's handiwork in UARG v. EPA.
The following year the Court rejected the EPA's mercury emission rules in Michigan v. EPA, only to have EPA officials crow that the Court's decision was irrelevant because the mere threat of regulation had induced compliance while the challenge worked its way through the courts. As the Chief Justice notes in one of the released memos, EPA officials were bragging about having imposed billions of dollars in compliance costs through the threat of imposing an unlawful rule. Further, as the Chief noted, EPA officials were suggesting they were prepared to do this again with the Clean Power Plan rule. (And, contrary to what some commentators claim, these points were all made quite explicit in the briefing to the Court (which is available here), and thus did not require the consideration of material outside the record.) So while the stay requests to the Supreme Court were unprecedented, so was the surrounding context--a point I noted at the time.
