The Mystery of the Missing Stay Order

Why is the Supreme Court waiting for weeks to dispose of a demand for extraordinary intervention in a routine situation?

The steel industry applied for Supreme Court intervention on what they claimed was an urgent issue of vast national importance. Chief Justice Roberts requested an immediate government response. That was six weeks ago.  Since then . . . crickets.

No doubt you’re on the edge of your seat, wondering about the impending crisis facing the industry and the earthshaking legal issue in the case.  And maybe also wondering why this is the first you’ve heard about it.

Here’s the issue that the industry thinks the Supreme Court absolutely has to consider right this minute: “Whether the court should stay the Environmental Protection Agency’s Federal ‘Good Neighbor Plan’ for the 2015 Ozone National Ambient Air Quality Standards as it applies to reheat furnaces and boilers at iron and steel mills.” Maybe you’re thinking that, as boring as this sounds, an environmental law expert would see its fascinating ramifications and urgent nature.

You’d be wrong about that. It really is just as dull as it sounds — an utterly routine squabble over a run-of-the-mill EPA regulation.  There are similar, equally dull requests from the paper industry. the gas pipeline industry., and the state of Ohio.   Those involve exciting issues like whether EPA reasonably applied a 1000-horsepower applicability criterion for natural-gas pipeline engines. There’s also a dispute over what issues were or were not adequately raised in the voluminous comments that EPA considered before taking action.  And about whether other litigation undermined the basis for the regulation.  Exciting stuff like that.

Nothing special, in other words. While not insignificant, these issues are the daily fodder of regulatory litigation. But there actually is one interesting aspect of the situation: The Supreme Court’s failure to rule on these “emergency” requests.  That’s weird: If they thought these emergency requests had merit, why would they wait so long?

Or maybe the Court is going to deny the stay but someone is writing a dissent. But what, if anything, would anyone find important enough to warrant a dissent at this early stage of the litigation? In the lower court, the order denying the stay noted that one judge, a Trump appointee, would have granted the stay, but there’s no written dissent.

In any event, the bottom line is that something odd is happening here. I suppose that soon or later we’ll find out what it is. And given the current make-up of the Court, whatever it is probably won’t be good.

air pollution, Clean Air Act, EME Homer, Good Neighbor provision, Litigation, Shadow Docket, Supreme Court