Amy Coney Barrett Breaks Ranks on Supreme Court’s Dangerous EPA Ruling

The Supreme Court on Thursday halted the Environmental Protection Agency’s “good neighbor” rule intended to combat air pollution. In a 5–4 decision, the conservative majority of the court upheld a stay against an EPA regulation that requires states limit their emissions to offset the effects in states downwind of their pollution, claiming the rule would cause “irreparable harm.” In a stunner, conservative Justice Amy Coney Barrett broke from the conservative bloc and wrote the dissenting opinion, joined by liberal justices.

Justice Brett Kavanaugh led in the court’s decision against the EPA, arguing that the good neighbor policy was too difficult to reasonably implement because who would be included is dependent on the winds. Barrett ripped that finding to shreds, writing that the court’s decision “enjoins the enforcement of a major Environmental Protection Agency rule based on an underdeveloped theory that is unlikely to succeed on the merits” and that the Supreme Court’s decision “downplays EPA’s statutory role in ensuring that States meet air-quality standards.”

The EPA issued its good neighbor rule in response to several states failing to create their own plans for implementing federal ozone pollution reduction rules issued in 2015 under the Clean Air Act. As Barrett notes, the 23 states that either didn’t submit any plans or submitted ones that didn’t meet EPA standards have been found by the agency to have “significantly contributed to ozone pollution in downwind states.” Twenty-one states “proposed to do nothing to reduce their ozone emissions,” the dissent adds. The EPA is statutorily required to ensure states comply with federal air quality standards, and to create a federal implementation plan if they don’t: In this case, it created the good neighbor plan. Upwind states promptly sued to prevent the EPA from rejecting their plans and to keep the good neighbor plan from going into effect, joined by regulated industries.

The Supreme Court’s decision to stay the good neighbor rule follows lower court rulings that deterred its implementation in 12 of the 23 states included in the ruling. Lawyers for the EPA noted during oral arguments that which states are included in the rule isn’t fixed, since wind patterns change.

The concept behind the policy takes into consideration states that are downwind of other states emitting pollutants. If, for example, states are buckets on a slope, and they’re all limited to filling a gallon bucket with water, the buckets further down the slope will inherently end up overflowing with the water poured into buckets further up slope from them. The good neighbor rule intends to reduce the amount of water poured into buckets further up the slope so those further downstream aren’t overloaded. Except in this case, the water is toxic pollutants and the buckets are giant industrial manufacturers toxifying our air and soil, with downwind states getting choked by pollutants emitted by their upwind neighbors.

The Supreme Court’s decision halting the implementation of the good neighbor rule is another step by the court’s conservative majority to curtail the EPA’s regulatory power, and, according to Barrett, it’s a step that’s not going to hold up on its merits if the case comes back to the Supreme Court.

Georgia Governor Brian Kemp admitted that he didn’t vote for Donald Trump in the state’s primary elections last week, only one day before the presumptive Republican nominee takes the stage in a presidential debate in Atlanta.

While Kemp had previously condemned Trump’s claims of election fraud in the 2020 presidential election, and even supported his subsequent indictment, the spineless conservative governor said he will still vote for Trump in November.

Now it seems his voting record is equally contradictory: Kemp couldn’t be bothered to back Trump in June. But he didn’t exactly take a stand, either.

“I didn’t vote for anybody. I voted, but I didn’t vote for anybody,” Kemp told CNN’s Kaitlan Collins on The Source Wednesday, noting that the race “was already over when the primary got here,” as Trump is already the party’s presumptive nominee.

It seems that Kemp has been suffering from the same lack of enthusiasm many voters are experiencing in the lead-up to November. Backing a convicted felon who you believe attempted to overthrow the results of your state’s democratic election will do that.

“I always try to go vote and, you know, play a part in it, but look, at that point, it didn’t really matter,” Kemp said.

The governor maintained, though, that he would “support the ticket” come November. To Kemp, it seems the only thing that matters is turning Georgia red again.

U.S. Supreme Court Justice Sonia Sotomayor wrote a scathing dissent Thursday, arguing that the court’s decision to gut the Security and Exchange Commission’s power to seek civil penalties was a threat to the separation of powers.

In a 6–3 majority opinion penned by Chief Justice John Roberts, the Supreme Court held that when the SEC seeks civil penalties, the defendant is entitled to a jury trial in federal court.

This decision was a major hit to a provision of the Dodd-Frank Act, which allowed the SEC to impose civil penalties during administrative proceedings against those who break the law. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Roberts.

In her dissent, Sotomayor brutally rebuffed the majority opinion as “plainly wrong” and slammed her conservative colleagues for undermining Congress’s authority to impose rules that entitle the government to civil penalties. She warned that the decision came as a result of ignoring a “mountain of precedent against it.”

“Beyond the majority’s legal errors, its ruling reveals a far more fundamental problem: This Court’s repeated failure to appreciate that its decisions can threaten the separation of powers,” she wrote. “Here, that threat comes from the Court’s mistaken conclusion that Congress cannot assign a certain public-rights matter for initial adjudication to the Executive because it must come only to the Judiciary.”

“The majority today upends longstanding precedent and the established practice of its coequal partners in our tripartite system of Government. Because the Court fails to act as a neutral umpire when it rewrites established rules in the manner it does today, I respectfully dissent.”

The decision has the potential to significantly weaken the ability of federal agencies, including the National Labor Relations Board, the Federal Trade Commission, and the Federal Communications Commission, to enforce fines against those who break laws, as those agencies lack the resources to pursue complaints in federal court. Functionally, the court’s decision will allow financial fraudsters to get off scot-free.

Donald Trump may be happy that the gag order in his hush-money case has been partially lifted as he awaits sentencing, but it could backfire on him, one legal expert says.

Glenn Kirschner, a former federal prosecutor, said Tuesday night that the gag order change “may and probably will come back to bite” the former president and convicted felon. It could even lead to prison time.

Judge Juan Merchan altered the gag order Tuesday, allowing Trump to talk about the witnesses and jurors in the case. Trump is still barred from speaking about the prosecutors, court staff, and their families, though.

During the latest episode of his YouTube series Justice Matters, Kirschner said that the order’s changes are “in accordance with the law,” but he noted that there is a legitimate fear for the safety of the witnesses and jurors now that Trump can speak freely about them. Still, he believes that there could be a “silver lining.”

“How many of you think Donald Trump will begin posting and saying things about the witnesses that are harassing and intimidating and threatening and perhaps even violence-inducing?” Kirschner asked. In the likely event that Trump does this, it could result in a harsher sentence.

Even before the gag order was lifted, Trump attempted to skirt it in different ways. He had his political allies act as surrogates to criticize the people he couldn’t, even editing their words at times. Some politicians, such as Representatives Bob Good and Lauren Boebert, even admitted that they traveled to Trump’s Manhattan trial for this reason. Trump also criticized one of the prosecutors in the case without mentioning his name. And there are the 10 documented violations of the gag order, which Merchan has already punished Trump for to the tune of $10,000 in fines.

Trump was found guilty of 34 felony counts in May for allegedly falsifying business records with the intent to further an underlying crime in the first degree for paying off adult film actress Stormy Daniels to cover up their affair before the 2016 election. The crime carries a sentence of up to four months in prison, and sentencing is scheduled for July 11, only four days before the Republican National Convention begins in Milwaukee, Wisconsin.

Merchan already has some alleged gag-order violations to consider before Trump’s sentencing hearing. The question is whether Trump will add to them between Thursday’s debate and July 11.

The Supreme Court on Thursday officially dismissed a challenge to Idaho’s medical emergency abortion clause, noting that it was “improvidently granted,” meaning that the high court should never have accepted the case in the first place.

The decision, which comes after the ruling was accidentally posted to the court’s website on Wednesday, restores the right to emergency abortion in Idaho—but only for now. The ruling will send the case back to a lower appeals court to be retried.

The case, Moyle v. United States, concerned whether pregnant people in the Gem State were allowed to get abortions when receiving lifesaving, critical care at hospitals—as required by federal mandate under the Emergency Medical Treatment and Active Labor Act, or EMTALA—or whether they and their fetus would have been considered two separate people.

Idaho already has a near-total abortion ban, but the Alliance Defending Freedom, the far-right Christian legal advocacy group that argued the lawsuit on behalf of the state, utilized the case to advance the idea of fetal personhood. Under the stipulation, doctors would have been legally required to treat a fetus—no matter how underdeveloped—with the same medical care as the person carrying it, even if it posed a potentially life-threatening medical risk to the pregnant patient.

But drafting a state law that directly conflicts with medical care considered to be a minimum for Medicare-funded hospitals around the country was outside the realm of legal possibilities, wrote Justice Elena Kagan in a concurring opinion joined by Justices Sonia Sotomayor and Ketanji Brown Jackson.

“EMTALA requires hospitals to provide abortions that Idaho’s law prohibits. When that is so, Idaho’s law is preempted,” Kagan wrote. “The Court’s ruling today follows from those premises.”

Justice Samuel Alito, joined in a dissenting opinion by Justices Clarence Thomas and Neil Gorsuch, plainly disagreed with Kagan’s description, arguing that EMTALA does not “unambiguously” require Medicare-funded hospitals to provide abortions. The conservative justices also claimed that EMTALA, a federal statute, does not supersede state law or its control of local medical practices—even if that local restriction has skyrocketed the rate at which pregnant women are airlifted from hospitals to receive out-of-state care, increasing the burden and cost of care on neighboring states.

“Idaho never consented to any conditions imposed by EMTALA and certainly did not surrender control of the practice of medicine and the regulation of abortions within its territory,” Alito wrote.

In her own opinion, Jackson disagreed with the court’s decision to duck a final say on the matter, especially after allowing a stay that prevented critical abortion access to linger in the state while it deliberated its decision.

“It is too little, too late for the Court to take a mulligan and just tell the lower courts to carry on as if none of this has happened,” Jackson wrote. By failing to make a decisive ruling on EMTALA’s protections, Jackson warned that “storm clouds loom ahead.”

This story has been updated.