Split Supreme Court Raises EPA Regulation Questions

In the wake of U.S. Supreme Court Justice Antonin Scalia’s passing on Feb. 13, the court has been attracting attention for its recent 4-4 decisions in some high-profile cases. Most notably, in United States v. Texas, the court split when reviewing the federal government’s appeal from a U.S. Court of Appeals for the Fifth Circuit decision that halted certain parts of President Obama’s immigration plan. The Supreme Court also voted 4-4 in three other cases over the past several months. In Hawkins v. Community Bank of Raymore, the court evaluated issues relating to gender discrimination claims under the Equal Credit Opportunity Act; in Friedrichs v. California Teachers Association, the court considered the legality of allowing public-sector unions in California to impose fees on public workers, including nonunion ­members; and in Dollar General v. Mississippi Band of Choctaw Indians, the court focused on the jurisdiction of a tribal court over Dollar General in a case involving the ­alleged sexual assault of an underage Native American intern. With the Supreme Court splitting 4-4 in each of these cases, the lower court rulings remain in effect.

If it wasn’t already clear during Scalia’s tenure on the court, the recent gridlock among the remaining eight justices confirms the importance of Scalia’s vote. Only several months prior to his death, Scalia voted with the five-justice majority in two significant Clean Air Act (CAA) cases affecting the power generation sector. In the first of these cases, the Supreme Court reviewed an appeal of the D.C. Circuit’s decision upholding the Environmental Protection Agency’s (EPA) Mercury and Air Toxics Standards (MATS); and in the second case, the Supreme Court reviewed the D.C. Circuit’s refusal to stay the EPA’s Clean Power Plan (CPP). In each case, the Supreme Court overturned the decision of the D.C. Circuit below. It is ­reasonable to assume, therefore, that if these two cases had come before the high court just a few months later, both cases would have ended in a 4-4 vote, and the D.C. Circuit’s rulings (both going in the opposite direction of the Supreme Court’s) would have been preserved.

MATS and the CPP—Litigation History