On February 21, the United States Supreme Court will hear a case — Ohio v. EPA — that could at least temporarily halt implementation of a plan created by the Environmental Protection Agency to protect millions of Americans from the health harms created by ozone pollution. The EPA’s Good Neighbor Plan is designed to impede ozone-causing compounds produced in 23 upwind states from drifting into downwind states, causing them to fall out of compliance with pollution limits contained in the EPA’s National Ambient Air Quality Standard for ozone. While the U.S. Circuit Court of Appeals considers legal challenges to the plan, the plaintiffs, including Ohio, have asked the justices to stay its implementation while that litigation continues.

According to Harvard Law School environmental law expert and Supreme Court watcher Richard Lazarus ’79, any ruling that the justices make on whether to grant the stay, which is essentially a procedural question, may forecast how they might rule on the merits of the case when and if it reaches them on appeal. Lazarus, the Charles Stebbins Fairchild Professor of Law, notes that the Court’s decision to schedule oral arguments in a case on the so-called shadow docket is an unusual maneuver. He believes that there are at least four votes, and as many as six, for granting the stay and, perhaps ultimately, rejecting the EPA’s ozone regulation plan. Harvard Law Today recently spoke to Lazarus about the case and what it could portend for the federal government’s ability to regulate air pollution.

Harvard Law Today: Can you describe the environmental issue at the heart of this case?

Richard Lazarus: This case is about EPA regulation of interstate air pollution under the Clean Air Act. One of the reasons Congress passed a national air quality law was to address the fact that, because air pollution doesn’t stop at state borders, you can’t just rely on state-by-state control of air pollution. Instead, a national law and a national approach was needed to guard against interstate air pollution created in upwind states drifting to downwind states. More specifically, this case involves the National Ambient Air Quality Standard for ozone, a national public health standard for ozone pollution. Because no single source produces ozone, limiting ozone production means regulating the sources of volatile chemical compounds and nitrogen oxides that combine in the atmosphere with heat to produce harmful ozone.

HLT: The State of Ohio and the other plaintiffs aren’t asking the Supreme Court to decide the legal merits of the EPA’s plan to regulate interstate pollution, but only whether to stay the implementation of those efforts while they litigate the substantive question in lower courts. Is this just a procedural question?

Lazarus: That’s right, but it’s also not devoid of the merits. Let’s start with the procedural issue. In recent years, the Supreme Court has often chosen to stay the legal effectiveness of certain federal rules while they are being litigated in lower courts, instead of waiting for the case to come up on appeal. These decisions, which often involve very little briefing and, typically, no oral argument, are often referred to as the shadow docket. And this practice has prompted a lot of criticism. The question critics ask is, how thoughtful are the justices being when they stay a major national rule without any significant briefing and typically without oral argument? And how activist are they being by reaching down to lower courts and issuing these stays? Obviously, the Court has to do that sometimes. No one would think the justices are wrong to stay an execution to ensure the person will be alive when their case eventually comes up to the Court via the regular docket. So, it’s hard to fault the Court for having some docket where they decide things very quickly without full briefing and any argument.

HLT: So, what’s the concern with the shadow docket, then?

Lazarus: What this Supreme Court has done in recent years, though, has been far more active than simply staying a small number of actions that need immediate attention. One of the most notorious shadow docket cases was an environmental case that involved the Clean Power Plan, which was the most important greenhouse gas rule put out by the Obama administration. The energy industry challenged the policy in the D.C. Circuit Court of Appeals and requested a stay of the EPA rule while the D.C. Circuit was considering the rule’s validity. After a few months, the circuit court said, “No, there’s no reason to stay this case. We don’t think you’ve met the stay criteria.” Historically, the industry would have been done. But they sought a stay from the Supreme Court, while the D.C. Circuit continued to hear the case. And to everyone’s shock, the Supreme Court agreed. It was Justice Scalia’s last real vote on the Court. He died five days later. But the impact was that the Clean Power Plan was stayed and never went into effect, because by the time it was litigated, the Trump administration was in office, and they ultimately repealed it. So, a stay like that had an enormous effect. People were saying, “What in the world was Supreme Court doing? They did this big thing based on nothing, but a few briefs filed quickly over about four days?”

So, this case occurs in the context of ‘here we go again.’ The plaintiffs have challenged a very important federal Clean Air Act rule, and the D.C. Circuit has said no stay is needed while we’re considering it because it is not going to harm anyone in the time it takes us to decide it. And the states opposed to the rule have sought a Supreme Court stay. The states in favor of the rule are naturally opposed to the stay, as are environmentalists and EPA. That makes it procedurally interesting.

HLT: Is there anything notable about the timing of the Supreme Court’s decision to take the case and the fact that they decided to hear arguments on a request for a stay?

Lazarus: Now, here’s where it gets more interesting. The plaintiffs filed that request for a stay in October and the Court, which normally acts on those things within a few days, did nothing for several months. And then, on December 20, what did the justices do? They scheduled the stay request for oral arguments. So, they aren’t following the normal procedure for shadow docket cases, which are typically decided without oral argument. Maybe the justices are responding to the criticism they’ve received in the past for issuing stays in shadow docket cases without hearing oral arguments. The Supreme Court will not decide the merits. But one of the criteria for whether to stay a rule is whether the Supreme Court thinks the challengers are likely to win in the lower court. If the justices think there’s a serious chance that they may want to hear the case themselves and believe that the petitioners are right on the merits, that makes them more likely to grant a stay while the litigation plays out below. So, the question of merits is relevant to the procedural question of whether to issue a stay.

HLT: Let’s talk quickly about the arguments for both sides. Can you summarize the plaintiffs’ arguments?

Lazarus: In 2015, the EPA made the national ozone standards tougher. EPA officials have identified 23 upwind states they think are causing downwind states to violate the new standard. And they said to those 23 upwind states, “You all have to reduce your emissions of these ozone precursors, because you’re causing non-attainment in downwind states.” The upwind states were required to submit a plan to do that to the EPA to review. The EPA disapproved the plans submitted by 21 of the 23 upwind states, saying “we think your plan is inadequate to bring emissions down enough.” And then, EPA imposed federal plans on 23 states. And the states cried foul. They said, “You have to give us a chance to figure out how to improve our own plans before you impose this federal plan on us.” And they challenged the disapprovals in federal courts of appeals around the country. And 12 of the 23 states succeeded in getting a federal court to stay the EPA-imposed plans. The states, including Ohio, also challenged the federal plans in the D.C. Circuit Court of Appeals. And they are asking the Supreme Court to stay implementation of all the plans the EPA imposed on the 23 states until the D.C. Circuit has a chance to rule on the case.

The plaintiffs have two primary arguments for a stay. One, they point out that 12 of the EPA-imposed plans have already been stayed. The whole purpose, they contend, was to deal with the emissions in all 23 upwind states. Because of the stays, it will only apply to 11 states. And in at least 12 cases, circuit courts have suggested that the challengers are likely to win the litigation on the merits. So, they say, “the whole thing doesn’t make sense anymore — it’s a mess, it’s chaos.” The second thing the plaintiffs say is that implementing the plan while it is still being litigated will cause them a lot of injury. “If you don’t stay this while this case is litigated, we’ll have to do all kinds of things to comply with federal plan, which will be a burden on our energy infrastructure, as well expensive. And since the whole thing is going to be thrown out by the courts in a couple years, you shouldn’t make us start the process of complying with the federal plans.”

“The question critics ask is, how thoughtful are the justices being when they stay a major national rule without any significant briefing and typically without oral argument?”

HLT: What is the Biden administration’s argument?

Lazarus: They’re responding by saying that the standard for getting a stay is really high, especially after the lower court already denied the request for a stay. The plaintiffs must show they are likely to win on the merits when this is all fully litigated. And the government argues that the states haven’t met that burden, because the federal plan can survive just fine, even if only 11 of the 23 upwind states end up participating. The administration also argues that the states won’t suffer irreparable harm while the litigation continues in the lower court. None of the new rules apply until 2026. Finally, they say, the downwind states are suffering from the high ozone levels, which are harmful to public health. And if the Court grants a stay, it will delay implementation by several years, which will harm public health.

HLT: I was interested in some of the language in the plaintiffs’ brief, terms like “power grab” and “failure,” and describing the EPA’s role in approving the state-produced plans as merely “ministerial.” Is that kind of stark language typical?

Lazarus: They also accuse the EPA of being “dictatorial.” So, yes, the rhetoric really is interesting and is prompted by the audience, Justice Thomas, Justice Alito, and Justice Gorsuch, who readily embrace that kind of rhetoric describing what they see as the heavy hand of the federal government. They view the EPA in those kinds of rhetorical terms. Justice Kavanaugh doesn’t tend to use that rhetoric, but he has expressed in the past a lot of discomfort with what he sees as EPA’s heavy-handed approach to the states, including in the interstate context. That rhetoric doesn’t tend to be Roberts’ and Barrett’s style, but it’s not clear it will put them off. It is just how these things are written these days with reference to EPA as dictators. It’s really harsh. But that is where some of the justices are.

HLT: I would have thought that Justices Thomas, Alito, and Gorsuch would be the safest votes for the plaintiffs, and that they should instead calibrate their language to appeal to Justices Kavanaugh, Barrett, and Roberts.

Lazarus: I agree. But it’s just the rhetoric of the day. Maybe they’ll tone it down for the oral arguments. I wrote a book called “The Rule of Five,” which is all about getting the fifth vote on the Court by strategically pitching your case to that one justice. In this case, Justice Kavanaugh could be a key vote. In 2014, the Supreme Court decided a case called EPA v. EME Homer involving the prior Good Neighbor rule. It was very similar to this case. The EPA disapproved the plans submitted by states and imposed its own. The states said the agency did not give them any guidance or time to come up with new plans. And the D.C. Circuit Court agreed, striking down the EPA’s plan. Who wrote that opinion for the D.C. Circuit? Justice Kavanaugh. But the Supreme Court reversed Kavanaugh’s decision, arguing that nothing requires the EPA to give the states more time. The EPA won big, six to two. Justice Ginsburg wrote the opinion for the Court, with the Chief Justice and Justice Kennedy in the majority along with Justices Kagan, Breyer, and Sotomayor. Justices Thomas and Scalia dissented. And Justice Alito recused himself; otherwise, it certainly would have been six to three.

HLT: So, is there a way to think about how the votes might line up this time?

Lazarus: The Supreme Court has changed since then, and the D.C. Circuit Court judge whose opinion was reversed, Justice Kavanaugh, is now on the Court. Justice Gorsuch is going to vote against the EPA; it would be a shock if he didn’t. Justice Thomas will vote against EPA. And Justice Alito will not recuse himself this time. So, the challengers need to get the chief justice and/or Justice Barrett to make it five or six votes against the EPA.

HLT: Does this case intersect at all with another case they heard recently focusing on whether to overrule Chevron deference (the precedent that says courts should defer to administrative agencies in interpreting federal regulations), or the major questions doctrine, a fairly recent approach the Court cited last year in siding with West Virginia against the EPA?

Lazarus: Yes and no. Yes, in the sense that it’s a question of deferring to the EPA’s judgment about whether the federal plan they are imposing on the states is correct and, under the major questions doctrine, fully authorized by the law. And so, that’s obviously relevant. In every single industry case that comes before the Court, the plaintiffs are trying to say it’s a major question. But I would argue this is different because, unlike the EME Homer case, this isn’t about any novel interpretation of statutory language, which is what the major questions doctrine focuses on. In the West Virginia case you mentioned, the Court’s decision hinged on whether the EPA’s interpretation of the word “significantly” in the statute was correct. That type of statutory interpretation question isn’t the focus here.

HLT: I know the Supreme Court has only agreed to decide whether to stay the implementation of the EPA’s plan while litigation on the merits continues in the lower court. But could the justices just skip ahead and issue a ruling on the merits?

Lazarus: That would be very controversial. They haven’t had full briefing. The justices can do whatever they want to do. But I think the odds of that are slim to none. The chief justice certainly wouldn’t vote to do that. It’s just not his style. So, I think they are going to leave it to the D.C. Circuit Court.

This interview has been edited for length and clarity.