Now, just yesterday, Chief Justice Roberts unexpectedly denied Michigan's request to stay enforcement of the MATS. After the Supreme Court handed down its ruling in Michigan, the cause was remanded to the D.C. Circuit, which (in the petitioners' words) "refused to vacate the unauthorized Rule, and instead left it in place with the effect of binding law." On Thursday, one of the S.C.'s most conservative members declined to take any action on that.
This case is important to the entire legal and environmental community, but it is also personally relevant to me. Ever since the certiorari petition was filed in Michigan, I had followed that case intently, and when it was granted I attempted to write and file an amicus curiae brief in support of the respondents. I was fourteen years old at the time, as enthusiastic as I was inexperienced and still more than a decade away from satisfying the S.C.'s bar admission requirements. My chances of procuring consent to file the brief were exceedingly slim.
The chances of everything that happened next were even slimmer.
I had listened to the recordings of almost every Supreme Court oral argument for years, but my familiarity with the cases and advocates only made it more surreal when I made one last phone call and, much to my surprise, found myself talking to Roman Martinez about the bar-admission situation. Far from dismissing my brief, as I fully expected, he took the time out to write me over the course of the next days, forward my pleading to Solicitor General Verrilli, and even invite me to attend the hearing.
The respondents' argument, on March 25th of 2015, was among the most forceful and engaging presentations I have read or listened to. General Verrilli opened for the EPA, carefully navigating hostile questions from Chief Justice Roberts and Justice Kennedy before launching into an accessible, cohesive explanation of the rules' background and effects in a manner strongly reminiscent of Louis Brandeis' renowned Muller v. Oregon (208 U.S. 412 (1908)) brief. To conclude, he outlined the EPA standard for reasonable administrative action, and deftly dealt with the preclusion undertones B&B v. Hargis had introduced. Then Paul Smith took over, speaking for industries supporting the regulations. He dealt mainly with the more technical aspects of the EPA's studies before subtly and effectively invoking the mootness question by describing how the majority of emissions sources had already implemented the MATS.
The decision in the case did not come down until June 29th, the last day of the Term. The D.C. Circuit's earlier ruling in favor of the EPA was reversed and remanded without vacatur 5-4, the late Justice Scalia speaking for the majority. The Circuit, pursuant to that disposition of the case, allowed the MATS to remain in force until the Agency was able to update them taking costs into consideration. Subsequently, Michigan et al. sought this stay of the rules, employing the preclusion and mootness angles to make their claims appear urgent. These arguments, however, were just sanctioned by Roberts in his denial of their application, unexpectedly strengthening administrative discretion instead of weakening it further.
Through all the twists and turns of this case, from the excitement of a pending litigation to the disappointment of what appeared to be final defeat and, now, to Roberts' surprising decision to render the earlier opinion unenforceable, I remain extremely grateful to everyone at the Department of Justice, and especially to General Verrilli and Mr. Martinez, who allowed me to feel like a small part of this unforgettable ride. Thank you for the incredible experience I call my first case.
(Katrianna posted the text on this entry and left out this image, so I went maverick on her and added it. -Her big sister)