The five members of the court who granted the request of Louisiana, other states and the oil and gas industry did not explain their reasoning, which is common in emergency applications in court.
But Justice Elena Kagan, disagreeing with Roberts and Justices Stephen G. Breyer and Sonia Sotomayor, said her conservative colleagues were turning what critics have called the court’s “shadow record” into something it never had. the intention to be.
The majority order “makes the Court’s emergency docket not for emergencies at all,” Kagan wrote. “The record becomes just another venue for determinations on the merits, except made without a full report and argument.”
Kagan said the applicants had waited months to apply and provided no evidence that they would suffer irreparable harm if the Supreme Court did not intervene, which is one of the essential elements needed to suspend a lower court order.
Democratic members of Congress have been increasingly critical of the court’s use of the emergency docket, which has expanded since Judge Amy Coney Barrett joined the court to provide a more consistent conservative majority. . She granted the stay along with Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch and Brett M. Kavanaugh.
Stephen Vladeck, a University of Texas law professor who has documented the court’s use of the shadow file, said Wednesday’s order was significant for what it says about the chief justice’s role on the court. .
“This is the ninth time Chief Justice Roberts has publicly been on the short side of a 5-4 ruling since Justice Barrett’s confirmation,” Vladeck said. “Seven of the nine have been from shadow file rulings. However, this is the first time that he has endorsed criticism of the shadow file itself.”
The fight is over a rule introduced by the Environmental Protection Agency during the Trump administration. It limited the ability of objecting states to stop pipeline and other projects that could pollute navigable waters regulated by the Clean Water Act, in response to complaints that some states and Native American tribes were abusing their discretion.
A coalition of states and environmental groups challenged the rule, saying it was at odds with 50 years of environmental regulations. After President Biden was elected, the agency said it would review the rule and asked the judges in three cases brought against the regulation to return the rule to the agency.
Two did, but a third, Judge William H. Alsup in San Francisco, vacated it nationwide. Louisiana and other plaintiffs upholding the rule appealed to the United States Court of Appeals for the Ninth Circuit, but the justices refused to stay Alsup’s order while they considered the case. That’s when those states went to the Supreme Court.
If it is allowed to stand, Louisiana and groups like the American Petroleum Institute told the court“The district court decision will become an easy-to-replicate blueprint for the premature removal of rules adopted by the previous administration by a new administration, with the help of aligned plaintiffs and a single, sympathetic district court. ”.
Attorney General Elizabeth B. Prelogar, on behalf of the EPA, acknowledged in his answer to the Supreme Court that Alsup “lacked the authority to nullify the 2020 rule without first determining that the rule was invalid.” But she said her ruling only returned the regulations to the status quo while the agency introduced a new rule.
Barrett in one direction on Monday told a California audience that in judging the court’s actions, citizens should read the court’s decision. But a frequent criticism of the court’s “shadow file” decisions is that no reasoning is often provided. That was true of Wednesday’s order.
Kagan, in his dissent, said court precedent allows emergency intervention only in “extraordinary circumstances,” including one party suffering irreparable injury.
The states that wanted to stop Alsup’s ruling didn’t even try that, he said.
“Applicants have not identified a single project that a State has obstructed in the five months since the District Court’s decision,” he wrote. “Furthermore, they have not cited a single project that the court ruling threatens, or could threaten, in the time before the appeal process concludes.”
Kagan noted that action in the appeals court is imminent and that by intervening without a full report and argument, the majority of the Supreme Court is “signaling its point of view on the merits.”
Kagan and the other liberals on the court have become frequent critics of the shadow file. And while Roberts has at times sided with him regarding the outcome of one of the emergency petitions, it is the first time he has joined in his criticism of the process.
The court order came Louisiana, et al. v. American Rivers, et al.