Just last Tuesday, the U.S. Supreme Court surprised the legal community
by issuing a preliminary injunction to stay the enforcement of sections
of the Clean Air Act and the EPA's corresponding regulations. This stay
effectively renders our government powerless to stop the release of
hazardous substances into federal airspace for as long as there are
still legal challenges pending in the courts. Although the Court treated
this unexpected move as a routine procedural nicety, in reality its
effects on both the atmosphere and the law could be disastrous.Penny Pinching
It all started last June with Justice Scalia's opinion for the Court in Michigan v. EPA
(14-46), in which the Agency was chastened for not adequately
considering costs when promulgating these lifesaving rules. As the
learned tribunal put it: "By EPA's logic, someone could decide whether
it is 'appropriate' to buy a Ferrari without thinking about cost,
because he plans to think about cost later when deciding whether to
upgrade the sound system." (576 U.S. __ (2015)).
comparison entirely ignores the vital importance of controlling these
pollutants. By the EPA's uncontested estimate, the regulations could
prevent up to 11,000 instances of premature death and 130,000
respiratory attacks annually. In the natural world, they would also
reduce acid rain (caused by the toxic gas hydrogen chloride, eighty-two
percent of which can be traced back to power plants) and the poisoning
of fish in our waterways (caused by mercury, which if ingested in fish
tissue can cause cancer and irreversible birth defects).
conservative quantification of these restrictions' costs and benefits
places the resulting national profit at $24 billion dollars. This
estimate leaves out environmental preservation, untreated medical
conditions, and increased agricultural productivity altogether, and for
those reasons it cannot be claimed that the EPA thoroughly considered
costs. Yet it remains abundantly apparent that administrative action on
this literally life-or-death issue is hardly an indulgence to be
indefinitely invalidated by an injurious injunction
Furthermore, the order is formally known as an interlocutory or "temporary" injunction, but its unusual lack of an expiration date will only encourage corporations to pursue frivolous and expensive lawsuits against the government in the attempt to extend the ruling indefinitely. In all probability, industry lawyers will be able to make this sanctioned lawlessness last until our next President takes office - and, unless a genuine liberal does manage to overcome the odds, this one simple measure could result in the undoing of one of this country's most crucial regulatory frameworks.So Much for Equity
Throughout our American history, the injunction has been used repeatedly as a tool for the repression of citizens' voices and the circumvention of constitutional principles. Notable examples include In re Debs
, (158 U.S. 564 (1885)), in which the Pullman strike was brutally crushed through the use of such a decree, or Walker v. Birmingham
, (308 U.S. 307 (1967)), in which it was held that civil rights demonstrators were lawfully imprisoned pursuant to an order prohibiting a planned march. However, it is important to note that these results do not characterize the injunction as an institution, but rather mark a departure from its historical role.
Much of this nation's legal tradition is inherited from ancient English customs, one of which is the dichotomy between general and equity jurisdiction. The first closely resembles our modern conception of civil procedure, in which the law governs the facts and stare decisis
is closely followed. The second, however, was a kinder and gentler version of the judicial process, designed more to ensure fair play than strict adherence to statutes. These cases were adjudged by the Lord Chancellor, (hence the name "chancery" jurisdiction), who was almost always a cleric, and therefore the decisions were heavily influenced by canon law and the dictates of conscience. By the 16th century, this method of decision-making was already deeply entrenched in British political culture, and therefore the Reformation did not significantly alter the function of equity courts. This arrangement even accompanied our ancestors across the Atlantic, and lasted in both countries until the widespread overhaul of the judiciary in the mid-1800s.
Even after the two systems merged, however, the special reasoning was preserved to some extent. Because common-law cases and their chancery counterparts were sometimes hard to separate under the new rules, the relief pleaded for became the main way to differentiate the two: monetary damages, which were and still are the standard form of redress, or declaratory and injunctive remedies, a more abstract solution with its origins in equity.
This is important because the complainants in these new challenges to the Clean Air Act and associated regulations are actually seeking equitable relief, but the Supreme Court's preoccupation with technicalities is contrary to the cardinal principles used to determine this variety of case. In traditionally equitable causes, courts are still justified in prioritizing social welfare and substantive justice over strict adherence to rules. As Blackstone observed in his famous Commentaries, "Equity, in its true and genuine meaning, is the soul and spirit of all law; positive law is construed, and rational law is made by it. In this, Equity is synonymous with justice; in that, to the true and sound interpretation of the rule." 3 B.C. 429. This interpretation has been confirmed repeatedly and resoundingly in our common law. In the landmark decision West Coast v. Parrish
, we find: "The liberty safeguarded is liberty in a social organization which requires the protection of law against the evils which menace the health, safety, morals and welfare of the people. Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable in relation to its subject and is adopted in the interests of the community is due process." (300 U.S. 379 (1937)). As Justice Holmes observed in 1896: "The true grounds of decision are considerations of public policy and social advantage, and it is vain to suppose that real solutions can come from... propositions of law which nobody disputes." Vegelahn v. Guntner
(167 Mass. 92).
I remember Justice Jackson once said: "If ever we are justified in viewing a statute not narrowly as through a keyhole, but in the broad light of the good it aimed for and the evils it hoped to prevent, it is here." U.S. ex rel Marcus v. Hess
, 317 U.S. 537 (1943). Given the countless human lives and priceless natural resources at stake in these circumstances, that statement seems equally apposite now.