Over the weekend, the New York Times published a fairly explosive investigation into the birth of the Supreme Court’s modern shadow docket. Traditionally used for procedural decision-making, the shadow docket has, over the last several years, acted as a back door for SCOTUS to make key policy decisions more or less on the fly—or at least without spending months or years considering briefs and oral arguments and writing out signed and detailed opinions. The Times’ reporting focuses on what was, at the time, a shocking move: the unexplained decision, deliberated over for just a few days, to grant a stay of the Obama administration’s Clean Power Plan, which would have established a national system for controlling greenhouse gas emissions under the Clean Air Act. If Obama’s rule had gone into effect, power plants would have had to reduce their emissions in line with state-specific targets, designed to meet federal goals. Thanks to SCOTUS, the plan was never implemented. The Court’s use of the shadow docket signaled both a bleak future for the Clean Power Plan, and a radical shift in how that body makes decisions. As my colleague Matt Ford wrote this week, the shadow docket has, in recent memory, “transformed from a simple administrative mechanism into a major roadblock for progressive governance.”
At the core of the Times’ reporting are 16 pages of previously unpublished discussions among the justices. While these may not be the full extent of their debate on the matter, as Ford points out, they show Chief Justice John Roberts forcefully arguing to bypass precedent and grant petitioners’ request for a stay on the Clean Power Plan before the legal merits of the rule had been decided on by a lower court. The Trump administration came to power a few months later. Before the case could be formally decided, the White House got to work dismantling the Clean Power Plan from the inside. Eventually, in 2022, SCOTUS’s ruling in West Virginia vs. EPA limited that agency’s ability to regulate greenhouse gas emissions under the Clean Air Act—a prelude of sorts to its broader attack on the administrative state. The fact that the decision credited with giving birth to the modern shadow docket concerned a climate change regulation hardly seems incidental; corporate polluters have long funded the right’s remarkably successful crusade to control the judiciary branch. A closer look at the Times documents shows just how seriously SCOTUS took polluting industries’ arguments.
In making the case to his colleagues for the urgency of granting the stay, Roberts wrote that it was important to do so because the Clean Power Plan would constitute “the most expensive regulation ever imposed on the power sector—net costs have been estimated to run as high as $480 billion from 2017-2031.” To support this assertion, he cited a 2014 report by NERA Economic Consulting. That study was prepared by NERA for the American Coalition for Clean Coal Electricity, American Fuel & Petrochemical Manufacturers, and several other industry groups whose members would have been subject to the Clean Power Plan. The report’s authors qualified that it had “not been independently verified, unless otherwise expressly indicated,” and that they made “no representation as to the accuracy or completeness” of the information it was based on, only that such information was “from sources we deem to be reliable.” Such caveats are relatively standard fare for these kinds of reports. What is notable is that it’s one of the few sources Roberts cites as justification for a decision that would upend decades of Supreme Court precedent.
Damningly, Roberts himself seemed aware of the limits of the report. He noted that “the sources of those analyses,” including another from Energy Ventures Analysis Inc., “lead me to believe that their figures are likely at the high end of a possible cost range.”
“That is one view,” Justice Sotomayor replied. “A likely biased view, as the Chief’s memo recognizes.”
A cursory look at the organizations that sponsored the NERA report lends some credence to Sotomayor’s assessment. Coal producers Murray Energy and Peabody Energy, for instance—two petitioners that sought a stay of the Clean Power Plan—were, in 2016, members of the American Coalition for Clean Coal Electricity, or the ACCCE. American Fuel and Petrochemical Manufacturers, whose members at the time included Koch Industries Inc., had given $135,000 to the Republican Attorneys General Association, or RAGA, by September 2016—up from $50,000 throughout all of 2015. Republican Attorneys General from West Virginia, Texas, and nearly all of the 22 other states that sued to stop the Clean Power Plan in 2015 were RAGA members. Among RAGA’s major donors at the time was the Judicial Crisis Network, a group closely associated with longtime executive vice president of the Federalist Society, Leonard Leo. As ProPublic has reported, Leo helped pick or confirm Roberts, Clarence Thomas, and Samuel Alito for the Supreme Court, and advised Trump on the nominations of Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett. Sotomayor’s saying the NERA report was “likely biased,” in other words, might have been a serious understatement.
Roberts’s phrase, “the most expensive regulation ever,” never appears in the NERA report, but it has been a favorite talking point for polluters challenging the Environmental Protection Agency. The National Association of Manufacturers, or NAM—which enthusiastically backed Roberts’ nomination to the Supreme Court—boasted in its 2014 annual report about its success in perpetuating the idea that a proposed EPA rule on ozone pollution would have been “the most expensive regulation of all time.”
The group had good reason to be proud. “From the Speaker of the House of Representatives to almost every major news outlet in America, the NAM’s message opposing the EPA’s proposed ozone standard carried far and wide,” the business lobby bragged. “The NAM defined the message and set the tone about how much the unforgiving new ozone standard could raise energy prices, hobble economic growth and hurt job creation.” NAM commissioned the study it used to make that case from NERA Economic Consulting. After its release, the NAM annual report added that the group’s energy team “toured the country, forging partnerships with allies in key states to counter the standard.”
Not long after SCOTUS granted its stay of the Clean Power Plan, in 2017, President Trump relied on yet another NERA report to justify pulling the United States out of the Paris Agreement, which stated, somewhat fantastically, that the implementation of the agreement “could obliterate $3 trillion of GDP, 6.5 million industrial sector jobs and $7,000 in per capita household income from the American economy by 2040,” as Trump paraphrased. That report was prepared by NERA for the American Council for Capital Formation Center for Policy Research, a non-profit research affiliate of the American Council for Capital Formation. The latter group has received generous funding from the Koch network, the John M. Olin Foundation, and other key fossil fuel–tied backers of the right-wing legal movement.
The fact that Roberts references an industry-backed NERA report isn’t a smoking gun so much as confirmation of a well-documented fact: that the right’s corporate-backed war against climate and environmental regulations is central to its broader anti-democratic project. For decades, the profits that flow from the coal, oil, and gas industries have financed the right’s crusade against majority rule, including the Clean Air Act and the other vestiges of the New Deal state that spurred them into action nearly a century ago. The courts offer polluters an especially tantalizing end-run around democracy. Trying to change laws and regulations through lobbying and campaign donations is a lot harder than influencing a handful of judges who can simply invalidate them.
