Earlier this month, the Supreme Court’s conservative supermajority flexed its muscles in Trump v. U.S., which grants the president immunity—potentially at his discretion. Just days before, however, the court drastically expanded presidential power in a less-noticed but equally dangerous manner.
In that case, Ohio v. EPA, the Court blocked a new federal environmental regulation on flimsy legal grounds and under extraordinary circumstances. The Court’s emergency order amounts to a judicial veto and may be the most brazen exercise of the Court’s stay power since Bush v. Gore. Most chillingly, it proves that Donald Trump’s deregulatory policy agenda will be carried out on his behalf for decades to come—whether or not he wins the presidency again.
Ohio v. EPA centers on a 2023 EPA regulation, known as the Good Neighbor Plan, that requires twenty-three states to control pollution generated inside their borders that later drifts across state lines. This cross-border drift has contributed to widespread failures by downwind states to meet Clean Air Act air quality standards.
Soon after the EPA issued the Good Neighbor Plan, a coalition of polluting industries and their red state allies filed legal challenges that prevented the agency from implementing it immediately in twelve of the twenty-three states where it should apply. Having partially sabotaged the Plan, the coalition then challenged its legality.
Right away, they swung for the fences: They asked the court of jurisdiction (the D.C. Circuit) to stay the entire Good Neighbor Plan before reviewing its legality. In essence, the challengers claimed that if the Plan wasn’t reducing pollution everywhere, the Court should not let it reduce pollution anywhere until all legal proceedings were complete.
Applying an established standard, the D.C. Circuit denied the stay. Then, instead of waiting for the Court to look into the Good Neighbor Plan’s legality, the challengers asked the Supreme Court to issue the stay that they had been denied.
In the days when I clerked for Justice Sandra Day O’Connor, that request would have been a legal Hail Mary—an almost irresponsible tactic given the hourly rate of Supreme Court litigators and the near-certainty that the Court would deny a stay. But the new Court isn’t interested in the old rules, and polluters know it.
During an abbreviated ninety-minute hearing, the Court’s conservatives made their intentions clear even as they displayed confusion about the case itself. That confusion was hardly surprising; the Court had restricted briefing and had deprived itself of a lower court ruling that would have sorted things out. Rather than pressing the challengers on what made this case extraordinary enough to demand a Supreme Court stay, the conservative Justices seemed more interested in asking for help identifying a legal error plausible enough to justify a stay.
The result: The Good Neighbor Plan has been stopped in its tracks before any court has decided that it’s illegal. In one year alone, the Plan would have delivered an estimated $15 billion in environmental net benefits, preventing 2,000 hospital visits, 25,000 missed days of work, and 430,000 missed school days.
From here it only gets harder. The government and public interest groups—including Earthjustice, the environmental law firm I help lead—must now defend the Good Neighbor Plan’s legality in the D.C. Circuit. We will be at a major disadvantage. What lower court judge wants to issue a ruling that a majority of Justices have already declared “unlikely”?
Worse yet are the broader implications. If paying to comply with a regulation constitutes irreparable harm, more courts will get into the business of issuing pre-decision “stays” of new regulations. As Justice Ketanji Brown Jackson pointed out during oral arguments, if this were true, then every government regulation could trigger a stay.
Pre-decision stays are enormously consequential. As we saw when the Supreme Court stayed the Obama Clean Power Plan, freezing forward-looking regulations can frustrate them entirely. Rather than complying with such regulations, industry can keep insisting that compliance is impossible. Windows of opportunity close. And the government itself can change; it is easier for a new presidential administration to cancel a regulatory program or wither it into obscurity if the courts prevented it from ever coming into effect.
By demonstrating their willingness to issue a stay on the flimsiest of grounds, Donald Trump’s SCOTUS appointees have given him an effective veto over any Democratic president’s regulatory agenda. He will have that power even if he loses the 2024 election. He will have it in the event he is sent to jail. Absent substantial Court reforms, he will have it even after he is dead.
This column was produced for Progressive Perspectives, a project of The Progressive magazine, and distributed by Tribune News Service.