Supreme Court has the right to stop Biden's power play

The Supreme Court rightly put on hold on June 27 what was, both figuratively and literally, another attempt at a power grab by President Joe Biden's hyper-aggressive regulators.

While the legal outcome was appropriate, the practical consequences of the decision could be even better. The decision could save both money and lives.

In the 5:4 decision in Ohio v. Environmental Protection Agencythe court majority has at least temporarily suspended new EPA regulations aimed at limiting emissions from power plants and industry that could be carried from one state to other states. For various reasons, numerous states claim that the new regulations exceeded the EPA's authority or that the EPA did not follow the proper procedure in announcing the regulations.

In a series of lower court decisions, 12 states (in six federal districts) have already obtained temporary stays on the EPA rule until the merits of their appeals can be fully examined. Ohio and the remaining 10 affected states, as well as three companies, sought similar leniency in the meantime, arguing that they should not be subjected to a costly rule that 12 other states could avoid and that could potentially be overturned entirely. In the latter case, the group of states led by Ohio would have to spend hundreds of millions of dollars, or even billions, to comply with regulations that could prove unlawful. Those billions of dollars, once spent, would be (in the court's words) “irrecoverable,” and the cost would be borne by both taxpayers and electricity ratepayers, who would also never recoup their expenditures.

In the worst case scenario, the rules could hamper power generation and overload power grids, endangering public health and even lives during weather disasters. In Texas, a grid outage during a severe freeze in 2021 left at least 246 people dead.

The Court majority wisely decided that the states were “likely” to win on appeal and that they would suffer “irreparable harm” if the rule went into effect during the long process of being challenged by the Court. And while this is not strictly a legal standard, logic suggests that the default position in contested cases should favor the status quo ante: leave the situation as it currently is unless and until the courts decide otherwise.

In other words, do not force one side or the other, new actions or to make new spending in the meantime. States, businesses and citizens cannot undo or take back what has already been done or spent, so why force them to proactively do things that the courts may ultimately decide did not need to be done in the first place?

Ironically, the court's preliminary ruling against the EPA came from Justice Neil Gorsuch, whose mother Anne was head of the EPA 40 years ago. He wrote that the EPA's rule was “arbitrary” and “capricious.” He also wrote that the EPA had failed to provide a reasonable explanation for its new rule, as the law requires.

For now, the EPA must suspend its nationwide rule until federal courts, including the Supreme Court, finally rule in the agency's favor on the complicated and essential regulatory issues. Again, at least five Supreme Court justices say that a final victory for the EPA would, at first glance, be not “probably.”


As we have noted in numerous editorials, federal courts have made a habit of blocking Biden's regulatory attempts and bureaucratic overreach in general. On the same day that EPA decision was announced, the Supreme Court ruled against the Securities and Exchange Commission in another case. Three days earlier, two judges appointed by former President Barack Obama blocked Biden's latest student loan forgiveness. Several federal district judges blocked Biden's attempt to force gender-ideological panaceas into Title IX protections for biological women. Other examples abound.

Biden and his appointees repeatedly ignore the separation of powers enshrined in the Constitution. As was succinctly stated in another environmental case, the US President’s case of 2015, Michigan v. EPA“Not only must the outcome imposed by an agency be within the scope of its lawful authority, but the process by which it arrives at that outcome must be logical and rational.” Biden repeatedly fails both tests. The courts would do well to continue to limit his abuse of power.