The Supreme Court on June 27 was right to place on hiatus something that was both figuratively and literally another attempted power grab by President Joe Biden’s hyperaggressive regulators.
While the legal result was appropriate, the practical results of the decision could be even better. The decision could save both money and lives.
In the 5-4 decision in Ohio v. Environmental Protection Agency, the court majority put at least a temporary hold on new EPA regulations designed to limit emissions, from power plants and industries, which could be carried downwind from one state into other states. For various reasons, numerous states contend that the new regulations exceeded EPA’s scope of authority or that EPA did not follow proper procedure in promulgating the rules.
In a series of lower court decisions, 12 states (in six federal circuits) already secured temporary blocks against the EPA rule until the merits of their challenges can be fully considered. Ohio and the remaining 10 affected states, along with three corporate entities, requested similar forbearance, arguing that they shouldn’t be subject in the interim to a costly rule that 12 other states were escaping and that might end up being nullified altogether. In the latter instance, the Ohio-led group of states would be required to spend hundreds of millions of dollars, or even billions, to comply with regulations that might turn out to be illicit. Those billions of dollars, once spent, would be (in the court’s word) “nonrecoverable,” and the costs would be borne both by taxpayers and by energy ratepayers who also would never recoup their outlays.
In worst-case scenarios, the regulations could hamper electricity generation and overtax power grids, which in times of weather emergencies could risk public health and even lives. In Texas in 2021, grid failure during a deep freeze caused at least 246 deaths.
The court majority wisely ruled both that the states will “likely” win on appeal and that the states would suffer “irreparable injury” if the rule takes effect during the long process of court challenges. And, while this is not strictly a legal standard, logic says the default position during contested cases should favor the status quo ante: keep the situation as it currently exists, unless and until the courts rule otherwise.
In other words, don’t force one side or the other to take new actions or incur new expenses in the interim. States, businesses, and people can’t undo or unspend what already has been done or spent, so why force them to proactively do that which courts may end up deciding they didn’t need to do at all?
Ironically, the court’s interim decision against the EPA was written by Justice Neil Gorsuch, whose mother, Anne, was administrator of the EPA 40 years ago. He wrote that the EPA rule is “arbitrary” and “capricious.” He also wrote that the EPA did not provide a reasonable explanation, as required by law, for its new regulation.
For now, then, the EPA must suspend its rule nationwide unless and until federal courts, including the Supreme Court, decide definitively in the agency’s favor on the complicated and substantial regulatory issues in play. Again, at least five of the high court’s justices say that at first review, an eventual EPA victory is not “likely.”
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As we have noted in numerous editorials, federal courts are making a habit of striking down Biden’s regulatory grabs and of bureaucratic overreach in general. The same day it issued this EPA decision, the Supreme Court ruled against the Securities and Exchange Commission in another case. Three days earlier, two judges appointed by former President Barack Obama blocked Biden’s latest student loan giveaway. Several federal district judges have blocked Biden’s attempt to force gender ideology nostrums into the Title IX protections meant for biological women. Other examples are plentiful.
Biden and his appointees repeatedly ignore the Constitution’s separation of powers. As concisely noted in yet another environmental case, 2015’s Michigan v. EPA, “Not only must an agency’s decreed result be within the scope of its lawful authority, but the process by which it reaches that result must be logical and rational.” Biden keeps failing both tests. The courts are right to keep reining in his abuses of power.