News Reports about Supreme Court Shadow Docket Show Failure to Recognize that Air Pollution Harms the American People

“Explosive new reporting from the New York Times is shedding light on the dangers of the Supreme Court’s ‘shadow docket.’

“In 2016, Environmental Defense Fund and leading power providers vigorously opposed the Supreme Court’s ‘shadow docket’ stay of EPA’s Clean Power Plan. Now, leaked memos obtained by the New York Times show that the Court did not even review strong evidence about the health impacts of air pollution from fossil fuel power plants before it made that ruling.

“The risks of this approach are best explained by writing in another Supreme Court decision. When the Court issued a stay of the Good Neighbor Rule in 2024, Justice Amy Coney Barrett wrote a dissent and said: ‘[T]he Court’s injunction leaves large swaths of upwind States free to keep contributing significantly to their downwind neighbors’ ozone problems for the next several years… [T]he equities counsel restraint.’ (Dissent, page 24)

“That sentiment is also true here. The Supreme Court decided to stay the Clean Power Plan – to block EPA’s limits on climate-destabilizing pollution from fossil fuel power plants, one of the largest sources of climate pollution in the U.S. and the world – without full briefing and without oral presentation of views in arguments made to the Court and the American people.

“The new reporting highlights the role of this rashly issued stay in inaugurating the Supreme Court’s use of unexplained and hastily issued ‘shadow docket’ proceedings to alter major national policies. However, it is also an alarming pivot in the Supreme Court’s utter failure to weigh the harm of air pollution itself. At no instance in these newly public records did the Justices grapple with the health hazards of pollution or its detrimental effect on people’s lives.

“The first Earth Day, on April 22, 1970, helped catalyze the Clean Air Act with overwhelming Congressional support. The law passed with a unanimous 73-0 vote in the U.S. Senate and was signed into law that December by President Richard Nixon. Statutory updates in 1977, 1990 and 2022 have strengthened and clarified the law. The net result has been a tremendous success story. The Clean Air Act has delivered life-saving health benefits for the American people, along with two trillion dollars in annual public health and economic benefits. It is fundamentally a public health law that protects people from pollution.

“Congress enacted this sweeping law based on its overwhelming judgment – in response to the American people – that industrial pollution harms human health, and that policy can prevent and ameliorate those harms through technological advances, collaboration among federal, state, tribal and local leaders, and enforcement of the law. As we reflect on the 56^th anniversary of Earth Day, this Supreme Court’s repeated failure to recognize that pollution causes harm to the American people, and its failure to recognize the protections enacted by Congress to address that harm, is a very serious concern. We must work together to ensure clean air, healthier and longer lives, and a safer climate today and for generations to come – as Congress forged into law.”