Last fall, if you asked commentators what OT23 was going to be about, chances are they would have said “the administrative state.” But things took a bit of a turn when circumstances in the lower courts conspired to fill out the Court’s docket with high-profile (and practically unavoidable) cases on Trump, abortion, Trump, abortion, and Trump. As a result, some of the Court’s admin-law cases got a bit lost in the mix, at least among the general public. But they still count among the most significant of the term.

Last week, the Court issued four closely and ideologically divided decisions, which have forced the nation’s admin-law professors to rewrite their syllabi. And of course law professors aren’t the only ones impacted. These four decisions (particularly in combination) significantly shift the balance of federal government power away from the Executive Branch (or at least from its administrative agencies) and toward the Courts, which will now play a greater role in supervising administrative agencies’ exercise of their rulemaking and enforcement authority:

  • In Loper Bright Enterprises v. Raimondo (No. 22-451), the Court overruled the 40-year old Chevron doctrine, ensuring that going forward, courts will exercise their independent judgment to decide whether an agency has acted within its statutory authority, without deferring to an agency’s interpretation of an ambiguous statute it administers;
  • In Corner Post, Inc. v. Board of Governors of the Federal Reserve System (No. 22-1008), the Court made it easier to challenge to agency rules, holding that the APA’s 6-year statute of limitations for mounting such a challenge commences not when the agency issues the rule but when the rule injures the plaintiff;
  • In Securities and Exchange Commission v. Jarkesy (No. 22-859), the Court held that when the SEC seeks civil penalties against a defendant for alleged security fraud, the Seventh Amendment grants that defendant a right to a jury trial, meaning that such charges generally must be brought in federal court, not before SEC administrative law judges;
  • And in Ohio v. Environmental Protection Agency (No. 23A349), the Court stayed the EPA’s efforts to enforce its so-called Good Neighbor Provision, which requires upwind states to take steps to prevent their air pollution from impacting the air quality of downwind states, in the process arguably giving the historically deferential arbitrary-and-capricious standard of review some sharper teeth.

We’ll start with Loper Bright, the case that has gotten the most attention and is the most significant, at least in the formal sense of legal doctrine. In it, the Court’s six conservatives finally did what some conservative justices have been calling for the Court to do for decades: overrule Chevron v. Natural Resources Defense Council (1984), which required courts to defer to agencies’ reasonable interpretations of the statutes they administer when those statutes are ambiguous. As a result, courts must now independently interpret ambiguous statutes themselves, giving no deference to the views of the agency tasked with implementing the statute as to its best meaning.

As a reminder for those who thought Chevron was already dead, the doctrine, in its traditional formulation, Chevron calls for a two-step analysis. At the first step, courts ask whether a particular statute is ambiguous. If it is, they move to the second, deferring to the agency’s proffered interpretation of the statute so long as it was a “permissible construction of the statute.” But over the years, the Court has chipped away at Chevron’s prongs in three major ways. First, it created what is often-called Chevron step zero, which limits Chevron deference to instances where the agency has embodied its interpretation of a statute it is charged with administering through formal notice-and-comment rulemaking or formal adjudication. Second, it has de facto made Chevron step one a lot more demanding, using more and more tools of statutory interpretation to conclude that the statute at issue can really only be read in one way (so isn’t ambiguous). And third, it has increasingly used various doctrines (like the major-questions doctrine) to conclude that certain questions are too important to delegate to an agency. As a result of these dynamics, Chevron has become—at least at the Supreme Court—something of a dead letter: It’s now been more than a decade since a majority of the Court has relied on Chevron to uphold an agency’s approach to a statute. But despite Chevron’s decreasing significance, the Court has rebuffed efforts to explicitly address the doctrine’s viability.

Until now. Loper Bright (and a companion case decided along with it, Relentless, Inc. v. Department of Commerce (No. 22-1219), arose from a rule of the National Marine Fisheries Service (NMFS). One of the federal statutes NMFS administers (the Magnuson-Stevens Fisher Conservation and Management Act) requires the agency to develop fishery management plans and to place observers on domestic fishing boats to collect data necessary to ensure compliance. But the Act doesn’t say who is supposed to pay the cost of those observers: The NFMS or the fishing boats. Not wanting to bear this cost itself, NFMS issued a rule saying basically “boats pay.” But when various fishing companies challenged the rule, both the D.C. Circuit and the First Circuit upheld it, concluding that the statute was ambiguous and NFMS’s approach was reasonable. The Court then granted certiorari, limiting its grant solely to the question of whether Chevron should be overruled entirely or at least pared back to circumstances where a statute is genuinely ambiguous on a particular question and not just silent.

Following argument, just about everybody agreed that Chevron was in peril. But commentators were split between those predicting that the Court would simply pare back Chevron (in a way similar to what it did a few terms ago with the related Auer doctrine) and those predicting that it would discard the doctrine entirely. But on the next-to-last day of the term, we finally got our answer: Chevron is overruled.

Writing for a majority of six (the Court’s conservatives), Chief Justice began his opinion with Marbury v. Madison (1803), which makes it the judiciary’s responsibility to say “what the law is.” And the Administrative Procedure Act of 1946 (APA) codified this principle by tasking courts with “decid[ing] all relevant questions of law” and “interpret[ing] . . . statutory provisions.” Roberts concluded that Chevron defies these constitutional and statutory commands, requiring instead that courts “ignore, not follow, the reading the court would have reached had it exercised its independent judgment as required by the APA.”

Having found Chevron inconsistent with these principles, the Chief turned to debunking one of its major rationales: that statutory ambiguities can be viewed as implicit delegations of authority to agencies. That’s wrong, Roberts concluded, because courts confront statutory ambiguities all the time, and they are equipped to resolve them using the traditional tools of statutory interpretation. And while it’s true that interpreting agencies’ statutes often raises highly technical questions—questions some might view administrative agencies as better equipped to resolve—Roberts observed that “many statutory cases call upon courts to interpret the mass of technical detail that is the ordinary diet of the law.”

So Chevron was wrong. But what should we do about it? Turning to that question, the Chief concluded that stare decisis does not require the Court to retain Chevron because stare decisis is not an “inexorable command.” Instead, it turns on the “the quality of the precedent’s reasoning, the workability of the rule it established, and reliance on the decision.” Roberts unsurprisingly found the first two factors counseled for overruling Chevron, but so too did the third, notwithstanding that the Court would be overruling a 40-year old decision. Here, the Court’s practice in recent years loomed large: The fact that the Court hasn’t relied on Chevron for more than a decade and has been ignoring it even in cases that seem to call for it shows that it is simply not that important to keep it around.

We’ll pause here for a brief aside on this aspect of the Court’s opinion. Because while the Chief is right that the Supreme Court has not been making much use of Chevron for a while, that’s not true of the lower courts, which have continued to rely on the doctrine in scores of cases (as the lower-court decisions here show). So while some in the press are certainly overstating the impact of overruling Chevron, it’s not nothing, either. At the very least, eliminating the doctrine will result in a lot more judicial involvement in regulatory matters, leading to more (and more complicated) statutory-interpretation cases. That increase in volume is likely to lead to more decisions where courts disagree about what a statute means, in turn leading to even more statutory interpretation questions before the Court. And what about all those normal people whose daily lives (or perhaps daily jobs) require them to comply with federal statutes and regulations? No longer can they be an ensured that an agency regulation interpreting a statute will likely be treated by the courts as controlling. Instead, they will have to use the robust tools of statutory interpretation to figure out the best reading of statutes, tools that this very term were unable to produce unanimity about whether “and” means “and” or “or.”

Justice Thomas concurred with the majority but wrote separately to emphasize that Chevron should be overruled because it was inconsistent with the foundational requirement of separation of powers. “Under Chevron, a judge was required to adopt an agency’s interpretation of an ambiguous statute, so long as the agency had a permissible construction of the statute.” That “curbs the judicial power afforded to courts and simultaneously expands agencies’ executive power beyond constitutional limits.” And Chevron creates another separation of powers problem by giving agencies the authority to create rules with the force of law by filling in statutory gaps, a task that appropriately lies with Congress. In Thomas’s view, then, “overruling Chevron” would help “restore . . . [the] separation of powers.”

Justice Gorsuch also wrote separately to elaborate on why “the proper application of stare decisis supports” overturning Chevron. After providing a brief history, Gorsuch identified “three lessons about the doctrine of stare decisis.” First, although a past decision may bind the parties to a dispute, it does not permit the Court to violate the Constitution or laws of the United States in future cases. Second, Gorsuch acknowledged that although judicial decisions may not supersede or revise the Constitution or federal statutory law, “they merit our respect as embodying the considered views of those who have come before.”  And third, courts “render a judgment based only on the factual record and legal arguments the parties at hand have chosen to develop,” meaning that later courts, considering different facts and arguments, may conclude that a different outcome is necessary. These principles together mean that stare decisis is a flexible standard by which the Court remains aware of the general value of precedent but recognizes the obligation to reverse decisions that were wrong when decided and or prove to be wrong with the benefit of new learnings. Applying this framework to Chevron, Gorsuch concluded that Chevron must be overturned because it “contra­venes the law Congress prescribed in the APA”; it “runs against mainstream currents in our law regarding the sep­aration of powers, due process, and centuries­ old interpre­tive rules that fortify those constitutional commitments”; and “maintaining Chevron would effectively require us to endow stray statements in Chevron with the authority of statutory language, all while ignoring more considered language in that same decision and the teach­ings of experience.”

In a forceful dissent, Justice Kagan, joined by Justices Sotomayor and Jackson (though only in Relentless, as she was recused from Loper Bright), argued that overruling Chevron was both theoretically wrong and practically unwise. Kagan began by emphasizing that Chevron has been a foundational aspect of administrative law for nearly four decades, allowing agencies with specialized expertise to interpret ambiguous statutes. And she noted the practical necessity of Chevron deference, arguing that agencies are better equipped than courts to handle the intricacies of regulatory policy due to their subject matter expertise, ultimately leading to more informed and technically sound outcomes. By contrast, eliminating Chevron leads to judicial overreach, with courts stepping into roles they are not suited for, resulting in less consistency and predictability in the law, as individual judges may lack the expertise required to make informed decisions on complex regulatory issues.

Having supported the theory of Chevron, Justice Kagan then turned to the negative consequences of overruling the doctrine on various regulatory domains, including environmental protection, public health, and financial regulation, arguing that these areas benefit significantly from the specialized knowledge and consistent application of policies by agencies. For example, in the public health context, “an agency’s construction of a statutory term benefits from its unique exposure to all the related ways the term comes into play.” For Medicare reimbursements, which are adjusted “for geographic wage differences” there is an interpretative question around what “geographic area” means – it “could be as large as a multi-state region or as small as a census tract.” Determining what geographic area makes the most sense requires gathering “information about what reimbursement levels each approach will produce,” “explor[ing] the ease of administering each on a nationwide basis,” “survey[ing] how regulators have dealt with similar questions in the past,” and “confer[ing] with the hospitals themselves about what makes sense.” This is something that HHS can do that courts simply cannot. And it shows that statutory interpretation is not solely a judicial function; it often involves policymaking, which is better suited for agencies that are accountable to the political branches.

Finally, Justice Kagan turned to stare decisis, arguing that even if Chevron were wrong, it should be preserved due to its long-standing role in administrative law and the reliance interests it has generated. As Kagan observed, if Congress believed that Chevron was wrong, it “could have abolished Chevron across the board, most easily by amending the APA.” Instead, Congress has remained silent even though the Court has upheld at least 70 agency interpretations of statutes under Chevron. But overruling the doctrine now will have significant practical consequences, leading to increased litigation and inconsistencies in courts’ decision-making. She concluded by observing that the Court’s decision ultimately results in judicial aggrandizement, requiring the Court to play a “commanding role” in policymaking, a role that neither the Constitution nor Congress has given it.

The Court dealt another blow to administrative agencies in Corner Post, Inc. v. Board of Governors of the Federal Reserve System (No. 22-1008), which addressed the question when a claim accrues under the Administrative Procedure Act (APA) for purposes of the statute’s 6-year statute of limitations for challenging agency rules? In a 6-3 decision, with the three liberal Justices in dissent, the Court rejected held that a claim does not accrue for purposes of the statute of limitations until the plaintiff id injured by a final agency action, even if that injury occurred more than six years after the agency action.

The case starts in 2018, when Corner Post, Inc. was established to run a truck stop and convenience store in North Dakota. A few years later, it sued the Federal Reserve Board, complaining that a regulation adopted in 2011 set too high a limit on fees that payment networks like Visa and Mastercard charge for debit-card transactions. The APA allows suits like Corner Post’s by empowering anyone injured by final agency action to obtain judicial review by suing the federal government in district court. But another statute, 28 U.S.C. §2401(a), bars any civil action against the United States unless it is filed “within six years after the right of action first accrues.” Like five other circuits, the Eighth Circuit concluded that the limitations period for a “facial” challenge to the Federal Reserve’s regulation ran from the time of the regulation’s adoption, meaning that Corner Post’s challenge was too late because the limitations period expired before it even existed. But because that majority approach conflicted with a decision of the Sixth Circuit, the Court granted certiorari.

The Supreme Court reversed the Eighth Circuit in an opinion authored by Justice Barrett and joined by the Chief Justice and Justices Thomas, Alito, Gorsuch, and Kavanaugh. The Court applied the limitations statute literally, holding that as to Corner Post, the right of action “first accrued” after it went into business and was affected or injured by the regulation. In Barrett’s view, when Congress enacted Section 2401(a), “accrue” had a well-settled meaning, specifically, the time when the plaintiff had a complete and present cause of action, which included suffering some loss or damage that is the basis for judicial relief. By contrast, Congress uses different language to craft a statute of repose, focusing on the defendant (rather than the plaintiff) by imposing a time limit for suit measured by the defendant’s actions, like promulgating a regulation. And because Section 2401(a) applies to all sorts of lawsuits against the federal government—not just challenges to agency rules under the APA—Barrett rejected using a repose-like rule in actions against an agency while applying a traditional accrual rule under the same statute for other types of suits against the Government. The Court therefore rejected the Federal Reserve’s argument that the limitations period runs from when any proper plaintiff could have challenged the regulation.

Justice Kavanaugh joined the majority opinion but wrote a separate concurrence to pick up on a thread left dangling in Justice Barrett’s opinion. As he pointed out, Corner Post is not itself a regulated party with respect to Regulation II, which directly regulates banks and the fees they can charge, and only indirectly (though meaningfully) affects the businesses who have to pay those fees. Thus, a downstream party like Corner Post could only seek relief from the impacts of an agency regulation if the APA permits the vacatur of agency rules.

In a footnote in her majority opinion, Justice Barrett noted that “[w]hether the APA authorizes vacatur has been subject to thoughtful debate by Members of this Court,” but stressed that the Court had only granted cert to decide how the statute of limitations applies to APA claims. Justice Kavanaugh criticized the Government for “[r]ecently … advanc[ing] a far-reaching argument that the APA does not allow vacatur,” and instead “permits a court only to enjoin an agency from enforcing a rule against the plaintiff,” directly. This position, Kavanaugh said, “would revolutionize long-settled administrative law—shutting the door on entire classes of every day administrative law cases.” The Government’s “newly minted position is both novel and wrong,” Kavanaugh insisted. “The APA authorizes vacatur of agency rules; therefore, Corner Post can obtain relief in this case.”

In dissent, Justice Jackson, joined by Justices Sotomayor and Kagan, wrote at length to document her view that the word “accrues” is context-specific and that in the context of administrative law, limitations periods uniformly run from the time of agency action. Because Section 2401(a) is a general statute—and doesn’t supply any underlying cause of action—Jackson believed it was natural for “accrues” to mean something different for challenges to agency action than for other types of claims against the Government. She further noted that trade groups had brought this lawsuit and only added Corner Post when the suit’s timeliness was challenged. And she expressed concern about the destabilizing effect of allowing any new company to bring a fresh facial challenge to long-existing regulations. Finally, she observed that the Court’s rule, in combination with “other decisions” this term, “invite[s] and enable[s] a wave of regulatory challenges.” She called on Congress to correct the majority’s “mistake” by amending Section 2401(a).

Thus, as Justice Jackson noted, Corner Post is particularly consequential when paired with Loper Bright, the decision overruling Chevron. Corner Post makes it easier to bring judicial challenges to agency rules, while Loper Bright makes those challenges easier to win.

But wait, deregulators, there’s more!

In Securities and Exchange Commission v. Jarkesy (No. 22-859), a 6-3 Court (same breakdown) held that, when the SEC brings an enforcement action seeking civil penalties against a defendant for alleged fraud, the Seventh Amendment entitles the defendant to a jury trial, therefore requiring the action to be brought in federal court rather than an agency decisionmaker. Jarkesy is consequential in its own right, but not unlike some of the other decisions discussed in this Update, its significance partially stems from the wave of litigation it is likely to spawn, as courts over the coming years will confront the question of how Jarkesy applies to a whole range of enforcement proceedings before a whole range of administrative agencies.

The case begins in 2013, when the SEC initiated an enforcement action against George Jarkesy, Jr., and his company, Patriot28, LLC, accusing them of alleged securities fraud. But rather than suing Jarkesy in federal court (as it is empowered to do), the SEC brought its case before an administrative law judge (ALJ) (which it is also empowered to do), seeking civil penalties. After a lengthy evidentiary hearing, the ALJ found for the SEC, levying a civil penalty of $300,000. After that decision was later upheld by the full SEC, Jarkesy sought judicial review. Ultimately, a divided panel of the Fifth Circuit set aside the SEC’s order on three independent grounds, holding that the administrative forum violated Jarkesy’s right to a jury trial under the Seventh Amendment, that the agency’s authority to decide whether to prosecute before a court or before an ALJ violated the non-delegation doctrine, and that the manner in which SEC ALJs are protected from removal violates the Constitution’s Appointments Clause. Because each of these holdings was significant on their own and sufficient to support the judgment, the Court granted cert on all three.

In an opinion by Chief Justice Roberts joined by the other conservatives, the Court affirmed the Fifth Circuit, addressing only the jury-trial claim. The Chief began by noting the historical importance of jury trials in the American legal system. The Seventh Amendment protects that important right by guaranteeing that in “suits at common law,” the right of a jury trial “shall be preserved.” This preservation of the jury-trial right extends even to suits based on statutory provisions, so long as the ultimate statutory claim is “legal in nature,” a question that turns mostly on the remedy sought. In this case, Roberts found the remedy “all but dispositive,” because the monetary relief sought by the SEC were the “prototypical common law remedy.” And while those remedies were specifically authorized (and limited by) the Securities Exchange Act and related statutes, they still served the fundamental purposes of punishment and deterrence, rather than restitution, making them inherently legal in nature and triggering Jarkesy’s jury-trial right​​. As a result, the SEC’s decision to try Jarkesy’s case before an ALJ and without the protections of a jury trial violated the Seventh Amendment.

The Chief then turned to the SEC’s argument that the so-called public-rights doctrine empowered Congress to entrust the adjudication of the claims against Jarkesy to an administrative forum. Briefly summarized, that doctrine provides that claims that “historically could have been determined exclusively [by the executive and legislative] branches” could be entrusted to an administrative adjudicator without running afoul of the Seventh Amendment. Examples include immigration cases, tax disputes, and administrative enforcement of public health and safety regulations. Thus, in perhaps the most important case, Atlas Roofing Company v. Occupational Safety and Health Review Commission (1977), the Court held that the administrative adjudication of civil penalties for workplace safety violations could be handled by an agency without a jury trial. But Roberts found this doctrine inapplicable here, focusing on the nature of the SEC’s penalty (monetary) and its intended goal (punishment and deterrence), both of which make this case more similar to the adjudication of a legal claim than an adjudication of public rights. And while Roberts acknowledged the practical benefits and efficiencies of administrative adjudication, those considerations cannot override the constitutional right to a jury trial in civil cases involving inherently legal claims. Ultimately, then, it is the substance of the action, not the forum or the identity of the parties, that determines the applicability of the Seventh Amendment​​.

Justice Gorsuch, joined by Justice Thomas, concurred with the majority opinion but provided additional reasoning. He highlighted the broader implications of the decision for the separation of powers and the protection of individual liberties. Gorsuch stressed that allowing agencies to adjudicate legal claims without juries undermines the role of the judiciary and the constitutional framework designed to protect citizens from arbitrary government action​​. Thus, whereas the majority focused on the meaning and reach of the Seventh Amendment, Gorsuch went beyond that, arguing that the Seventh Amendment, Article III, and the Due Process Clause work together to protect a defendant’s right to a “fair trial in a fair tribunal.”

Justice Sotomayor, joined by Justices Kagan and Jackson, dissented. She began by criticizing the majority’s decision as “a power grab” that ignored Congress’s authority to create administrative processes for enforcing regulatory statutes, an authority that does not violate the Seventh Amendment. The majority’s decision, by contrast, overstepped the Court’s more limited role in the constitutional structure by encroaching on another feature of the Constitution’s design the Founders used to protect individual rights: “the division of our Government into three coordinate branches to avoid the concentration of power in the same hands.” Sotomayor also noted the practical benefits and efficiency of allowing agencies to adjudicate enforcement actions, arguing that these considerations support the legitimacy of administrative proceedings in certain contexts​​. She concluded by warning that the Court’s decision would significantly hinder the ability of regulatory agencies to enforce important public protections in an efficient manner by requiring jury trials in any case seeking civil penalties, burdening the judicial system and undermining the effectiveness of regulatory enforcement​​.

Ultimately, time will tell just how consequential Jarkesy proves to be. Nominally, the Court’s decision is limited to enforcement actions under the securities law seeking civil penalties. But as the dissenters observed, dozens of agencies impose similar civil penalties in administrative proceedings, many of which arguably resemble some common-law form of action. It seems inevitable that these agency processes will soon be challenged, forcing courts to decide how the Court’s decision applies to a wide range of agency adjudications.

Finally, we come to Ohio v. Environmental Protection Agency (No. 23A349). If you pay attention to that docket number, you might realize that this case is a bit of an odd duck, because unlike just about every other decision we’ve covered in this year’s update, Ohio v. EPA isn’t a traditional merits case, reaching the Supreme Court after some final judgment in the courts below. Instead, it’s an application for a stay of an EPA rule pending the results of a challenge to that rule before the D.C. Circuit. Ultimately, five of the Court’s conservative justices concluded that stay was warranted because the challengers were likely to prevail. In doing so, they applied an arguably more-demanding approach to the APA’s familiar arbitrary-and-capricious standard of review, concluding that the EPA’s actions were likely invalid because it didn’t adequately deal with a host of potential problems with its approach.

As far as challenges to EPA rules go, this one is relatively straightforward. Under the Clean Air Act (CAA), the EPA and the States are supposed to work together to develop plans for improving air quality and limiting pollutants. That process begins by requiring states to submit State Implementation Plans (SIPs). If the EPA concludes that those plans meet the applicable requirements of the CAA, it “shall” approve them. But if they don’t, the EPA “shall” instead issue a Federal Implementation Plan (FIP) for the deficient state, unless the state first corrects the problem. In 2015, the EPA revised its air-quality standards for ozone, which triggered the States’ obligation to submit new SIPs. But for the most part, those SIPs concluded the states submitting them didn’t need to comply with the CAA’s Good Neighbor Provision, which basically requires states in upwind states to prohibit emissions that would impair downwind states’ ability to meet their own air-quality standards. EPA ultimately rejected those deficient SIPS and proposed replacing them with a single FIP to bind the 23 affected states. But when 11 of those states were temporarily removed from this group through other litigation, the remaining 12 challenged the EPA’s FIP, concluding it was arbitrary and capricious because it was based on allegedly faulty data and because the EPA had failed to provide a reasoned basis for not adjusting the plan in light of the 11 states’ removal from the affected group. And they sought temporary relief from the D.C. Circuit, where their challenge was pending, asking that court to put the FIP on hold during the course of litigation. When the D.C. Circuit denied that request, the challengers sought temporary relief from the Supreme Court, through its so-called emergency docket. The Court then did something a bit unusual: Rather than simply granting or denying the application in a few weeks based on the papers, it called for lengthy briefing and then calendared the case for more or less a normal oral argument, but one limited only to the question of temporary relief, not the ultimate merits.

A few months after that unusual procedure, Justice Gorsuch, joined by the Chief and Justices Thomas, Alito, and Kavanaugh, reversed the D.C. Circuit’s denial of a stay, ordering that the FIP remain on hold throughout the duration of the litigation. Ultimately, the case came down to the question of whether the challengers were likely to prevail at the end of the litigation, something that would require them to show that the EPA’s FIP was arbitrary and capricious. Gorsuch concluded that it “likely” was because the EPA never adequately explained why it was keeping the omnibus FIP in place notwithstanding that it would no longer apply to the full 23 states that were the basis of the analysis but instead just 12. He then rejected three main arguments by the EPA in support of its actions, concluding that the “severability” provision the EPA included in the rule wasn’t sufficient to address the removal of some states from the FIP, that the challengers adequately raised these concerns in notice-and-comment rulemaking, and that the challengers did not need to bring a post-rulemaking motion for reconsideration before raising their arguments in court. He then turned to the dissent, which he dismissed largely because its argument was one the EPA itself had not pressed. Thus, the EPA’s FIP remains on hold until the D.C. Circuit (and perhaps the Supreme Court) ultimately decides whether the EPA acted arbitrarily and capriciously, something the Court’s decision arguably pre-ordains.

Justice Barrett, joined by Justices Kagan, Sotomayor, and Jackson, dissented. And while we could go through its points in detail, perhaps the better thing to do is to use it as an example of why its difficult to litigate (and decide) a case like this one—involving the reasonableness of a whole host of decisions made by the EPA over a years-long rulemaking—in the context of an application for interim relief. That’s because ultimately, Barrett and the other dissenters fundamentally disagreed with the majority on what the record actually established about what the EPA did, why it did it, and what considerations prompted its actions. And in the context of this case, where the applicant for interim relief has to show they are likely to prevail at the litigation’s conclusion, these ambiguities or uncertainties in the record ought to count against it. Thus, without deciding that EPA’s actions in fact were adequately explained and reasoned, the dissenters would have denied the stay for the simple reason that the applicants hadn’t yet shown they weren’t.