by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.
The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.
The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.
The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).
Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.
First, section 705, governing stays of administrative action, did not give the Supreme Court jurisdiction to stay the Clean Power Plan. It is well settled that the Administrative Procedure Act is not a grant of jurisdiction.
Second, section 2101(f) permits "a justice of the Supreme Court" to stay "the execution and enforcement of . . . a judgment or decree," with the latter phrase referring to "the final judgment or decree of any court that is subject to review by the Supreme Court on writ of certiorari." This provision does not, by its terms, give the Supreme Court the power to stay an agency regulation that has not been the subject of a "final judgment or decree of any court." Even assuming that the D.C. Circuit's denial of a stay could be considered a "final judgment or decree," the parties asking for a stay were not seeking review of that decision. The only decision at issue in the applications for a stay was EPA's final rule. But section 2101(f) says nothing about final agency rules.
Third, section 1254(1) provides for review of "[c]ases in the courts of appeals . . . [b]y writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." As I have said, no party asking for a stay of the Clean Power Plan filed a writ of certiorari nor indicated an imminent intent to file one. Nor did the Court treat the applications for a stay as petitions for a writ of certiorari. A provision giving the Court jurisdiction over cases in which it grants a writ of certiorari does not give the Court jurisdiction over cases that do not involve a writ of certiorari. Notable, too, is the fact that the Supreme Court held over 100 years ago that the writ of certiorari is unavailable for the purpose of reviewing an administrative action.
All of this appears to leave only the All Writs Act as a possible source for the Court's jurisdiction over the Clean Power Plan. The All Writs Act authorizes "[t]he Supreme Court and all courts established by Act of Congress [to] issue all writs necessary or appropriate in aid of their respective jurisdictions." The Supreme Court has held, however, that the All Writs Act does not "enlarge" a court's jurisdiction. This holding cuts against the idea that the All Writs Act granted the Supreme Court jurisdiction it did not otherwise have over the challenges to the Clean Power Plan.
Many years ago, however, in the case of Ex parte Republic of Peru, the Supreme Court held that it had the power under the All Writs Act to issue a writ of mandamus directly to a federal district court, even though the Supreme Court had no direct appellate jurisdiction over the case. The Court relied on its historic supervisory powers over the lower courts in finding it had jurisdiction to issue the writ directly to the district court. Because the Supreme Court has appellate jurisdiction to review the decisions of lower courts on challenges to agency regulations, it might be argued that Ex parte Peru and cases following it support the Court's jurisdiction to issue extraordinary writs to federal agencies under the All Writs Act. After all, just as the district court's decision in Ex parte Republic of Peru was not subject to direct appeal in the Supreme Court but nonetheless the Court held itself empowered to issue a writ of mandamus, so, too, EPA's Clean Power Plan was not subject to direct appeal in the Supreme Court but perhaps nonetheless the Court had power to issue a writ of mandamus holding it in abeyance.
This conclusion does not, however, follow from Ex parte Republic of Peru and like cases. It is one thing to leapfrog over the intermediate federal appellate courts to reach the federal district courts with an extraordinary writ. It is quite another to leapfrog over them in pursuit of an agency of the executive branch. The Supreme Court's historical supervisory power over the lower federal courts does not extend to the executive branch. At the very least, it is not clear that it does, and the Court should not have precipitously and without explanation addressed a novel question of this magnitude without a full-scale process and decision on the merits of it.
The D.C. Circuit itself has recognized as much with respect to its own authority. It has declined to interpret the All Writs Act to create federal jurisdiction over a claim that otherwise would be unreviewable in the posture in which it is presented. Indeed, the D.C. Circuit did so in rejecting a challenge to the proposed Clean Power Plan, holding that challengers' attempt to obtain judicial review of EPA's proposed rule, based on the All Writs Act, could not succeed. In that case, Judge Kavanaugh wrote:
Petitioners contend . . . that we should consider their challenge now because they are already incurring costs in preparing for the anticipated final rule. And petitioners say that the Court will not be able to fully remedy that injury if we do not hear the case at this time. But courts have never reviewed proposed rules, notwithstanding the costs that parties may routinely incur in preparing for anticipated final rules. We recognize that prudent organizations and individuals may alter their behavior (and thereby incur costs) based on what they think is likely to come in the form of new regulations. But that reality has never been a justification for allowing courts to review proposed agency rules. We see no persuasive reason to blaze a new trail here.
Before the Supreme Court stayed the Clean Power Plan, that Court, too, had never exercised jurisdiction over the kind of claim presented to it. Unlike the D.C. Circuit, however, the Supreme Court appears to have seen "persuasive reason to blaze a new trail." But the Court did not elaborate on, or even mention, the source of its authority to issue the stay. It remains a mystery why the Court thought it had the power to do what it did.
In granting, for the first time, a stay of an agency rule that has not been reviewed by any lower court, the Supreme Court has opened a new world of opportunity for those disappointed with agency regulations. Indeed, the race for stays is already on: This week, 20 states asked Chief Justice Roberts to stay the EPA's rule regulating mercury and other toxic air pollutants from power plants. The Chief Justice has asked the government to respond.