Post 2 of 2: Reviewing Agency Interpretations of Law from 1986 through 2016

By Andrew Thornton, Staff Contributor

1.1       Introduction to Post 2 of 2

This is the second of two posts giving a first look at Justice Scalia’s environmental legacy from the opinions he authored during his three-decade judicial career. In the first post I looked at five opinions he authored from 1984—when he was sitting on the D.C. Circuit—through 2006. In this post I look at six significant opinions drawn from the last decade of his service: from Massachusetts v. EPA in 2007, in which he dissented, to Michigan v. EPA in 2015, in which he wrote the opinion for a five-justice majority.[1]

1.2       Massachusetts v. EPA (2007) (Scalia, J., dissenting)[2]

Massachusetts v. EPA is a giant case, in which states and private organizations sued under the Clean Air Act to require EPA to regulate carbon dioxide and three other greenhouse-gas emissions from new motor vehicles. Section 202(a)(1) of the Act, as amended, 42 U.S.C. § 7521(a)(1), requires the Administrator to “prescribe . . . standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles . . . which in his judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare.” “Air pollution” includes “any physical, chemical, biological, [or] radioactive . . . substance or matter which is emitted into or otherwise enters the ambient air,” § 7602(g), and “welfare” includes “effects on . . . weather . . . and climate,” § 7602(h).

EPA denied the petition to regulate most importantly because it thought greenhouse gases were not air pollutants under the Clean Air Act, which EPA reasoned was intended to regulate local, not worldwide air pollution. Moreover, the EPA said, it would not regulate greenhouse gases even if it had the authority to, since a causal link had not been unequivocally established between greenhouse gases and the climate change injurious to petitioners.[3]

The Court’s holding on the petitioner’s standing is important but it goes beyond my present purposes, so I will set it aside. (Moreover Justice Scalia does not discuss standing in his dissent; he joins Chief Justice Roberts’s dissent on this issue.)[4] And on the question of EPA’s interpretation of the Clean Air Act, the majority held EPA’s interpretation unsupportable. The statute defines “air pollutant” as “any air pollution agent . . . including any physical [or] chemical substance . . . which is emitted into or otherwise enters the ambient air.” Because the statute is “unambiguous” in covering “all airborne compounds of whatever stripe,” carbon dioxide and the other greenhouse gases qualify as “air pollutants.”[5] The majority goes on to rebut EPA’s alternative argument, that even if greenhouse gases qualified as “air pollutants” under the Act, it would be unwise to regulate them, but I will proceed to Justice Scalia’s dissent on the question of EPA’s interpretation of “air pollutants” excluding greenhouse gases.[6]

Justice Scalia disputes the majority’s interpretation of the statute by reasoning that although greenhouse gases satisfy the second element of “air pollutant”—they are “physical, chemical, substances or matter which are emitted into or otherwise enter the ambient air.”—they do not satisfy the first half, that is, they are not “air pollution agent[s] or combination[s] of such agents.” Moreover, Justice Scalia reasons, there is ambiguity in the statute’s definition of “air pollutant”: “any air pollution agent or combination of such agents,” etc. Because the statute does not define “air pollution agent,” the Court should defer to EPA’s reasonable interpretation of it. Once again Justice Scalia opens the dictionary to bolster his analysis of the reasonableness of EPA’s interpretation of “air pollution agent.” He concludes that “EPA’s conception of air pollution—focusing on impurities in the ambient air at ground level or near the surface of the earth—is perfectly consistent with the natural meaning of that term.”[7]

In sum, he is dissatisfied not only with the majority’s failure to explain why EPA’s interpretation is incorrect, let alone that EPA is so incorrect so as not to deserve Chevron deference.[8]

1.3       Entergy Corp. v. Riverkeeper, Inc. (2009) (Scalia, J., writing for five-justice majority)[9]

At issue in Entergy Corp. v. Riverkeeper, Inc. was EPA’s interpretation of section 316(b) of the Clean Water Act, 33 U.S.C. § 1326(b), which regulates the “cooling water intake structures” used to cool large power plants. In particular, section 1326(b) mandates that “[a]ny standard established pursuant to section 1311 of this title or section 1316 of this title and applicable to a point source shall require that the location, design, construction, and capacity of cooling water intake structures reflect the best technology available for minimizing adverse environmental impact.” EPA interpreted the phrase “best technology available for minimizing [cooling water intake structures’] adverse environmental impact” to include analysis of technologies’ relative implementation costs and environmental benefits.[10]

Riverkeeper and other environmental groups challenged EPA’s interpretation, arguing that because section 1326(b) refers to “minimizing adverse environmental impact,” therefore the “best technology available for minimizing adverse environmental impacts” is the technology that is both (i) economically feasible and (ii) reduces environmental harms the most. Justice Scalia, writing for a five-justice majority, rejects this argument. He reasons that “minimize” does not always refer to “the greatest possible reduction.” His counterexample is weak, one must admit: the justice quotes another section of the Clean Water Act, 33 U.S.C. § 1251(f), which requires implementing regulations to “encourage the drastic minimization of paperwork and interagency decision procedures.” He reasons that if minimization already meant reduce to the greatest possible degree, then the qualifier “drastic” would be superfluous.[11] This is a very important point in the majority’s rejection of Riverkeeper’s argument, so I will pause on it for a moment.

I doubt that “minimize” connotes reduction alone in the idiolect of any speaker of American English, let alone that it connotes reduction as a matter of the word’s “plain,” “natural,” or “common” meaning. And it is most curious that Justice Scalia does not turn to a dictionary. I cannot believe the justice did not even consult a dictionary definition of “minimize” since it is a favored interpretive tool of his, and besides, he earlier cites a dictionary to define “best.” If one were cynical, one would infer from Justice Scalia’s failure to use one to define “minimize” that the dictionary definition contradicts his conclusion or desired outcome. I cannot guess at his intention—perhaps it was an oversight; he does not say—but it does indeed contradict his definition of “minimize” as merely reducing. The dictionary I consulted defines it thus: “[t]o reduce (esp[ecially] something unwanted or unpleasant) to the smallest possible amount, extent, or degree.”[12] What is more likely: that Congress mistakenly and unnecessarily called for a “drastic minimization” in paperwork instead of just “minimization,” or that it meant “reducing adverse environmental impact” when it wrote “minimizing adverse environmental impact”? For, without a doubt, Justice Scalia’s opinion leaves “minimizing” to mean nothing more than “reducing.”[13]

Entergy shows Justice Scalia at his least fidelitous to the statutory text. He ignores the common and dictionary definition of “minimize” in favor of the definition of “reduce”—query why Congress did not use that phrase if that is what it meant—and leaves it to EPA to require whatever reduction is “warranted under the circumstances.” And having given EPA that discretion, Justice Scalia finds no problem with EPA consider technologies’ relative costs and benefits when deciding what degree of reduction is called for.[14]

1.4       Decker v. Northwest Environmental Defense Center (2013) (Scalia, J., dissenting)[15]

In Decker v. Northwest Environmental Defense Center Justice Scalia dissented from the majority’s deference to EPA’s interpretation not of an authorizing statute but of EPA’s own regulation. It is thus different from the other ten other cases in these two posts, but I include it anyway because its difference makes it a little interesting. In Decker the justice objected to the so-called Seminole Rock or Auer doctrine, whereby the Court defers to an agency’s interpretation of its own regulations unless plainly erroneous or inconsistent with the regulation itself. But Justice Scalia did not only object to this doctrine; he also objected to EPA’s interpretation in question. I therefore leave his dissent in Decker to the reader’s curiosity if she finds it intriguing.[16]

1.5       EPA v. EME Homer City Generation, L.P. (2014) (Scalia, J., dissenting)[17]

EME Homer City Generation posed several questions for the Court; only one of them required Chevron analysis. At issue in this case was the Clean Air Act’s Good Neighbor Provision, 42 U.S.C. § 7410(a)(2)(D)(i), which gives EPA authority to regulate only the “amounts” of upwind pollution that “contribute significantly to nonattainment” of pollution standards in downwind states. But the Clean Air Act was silent about how EPA should allocate responsibility among multiple upwind states that contribute significantly to a downwind state’s nonattainment. The majority held that under Chevron, because Congress was silent on this question, it impliedly delegated authority to EPA to select an interpretation among reasonable options. EPA’s chosen interpretation, 76 Fed. Reg. 48,208, 48,254 (Aug. 8, 2011), considered both (i) the magnitude of the upwind states’ contribution, by counting only upwind pollution amounts at least one per cent of a national ambient air quality standard (NAAQS) that the downwind state had not met; and (ii) the cost of eliminating that upwind pollution, by only requiring upwind states to eliminate pollution if it will cost less than a threshold decided by EPA. Because the Good Neighbor Provision did not preclude EPA from considering elimination costs, and considering costs is a sensible way of choosing which among equal upwind pollution amounts to eliminate, the majority deferred to EPA’s interpretation under Chevron.[18]

Justice Scalia thought EPA’s fix went too far. In brief, he reasoned that because the Good Neighbor Provision “assigned responsibility on the basis of amounts of pollutants,” EPA had no authority “to reduce interstate pollution in the manner that it believes most efficient,” by taking into consideration the cost of eliminating upwind pollution. Justice Scalia again used the elephant-in-mousehole argument: “We have repeatedly said that Congress ‘does not alter the fundamental details of a regulatory scheme’ ”—here, from allocating upwind states’ responsibility by amount of downwind pollution to allocating by amount and cost—“in vague terms or ancillary provisions—it does not, one might say, hide elephants in mouseholes.’ ”[19]

1.6       Utility Air Regulatory Group v. EPA (2014) (Scalia, J., writing for five-justice majority)[20]

After Massachusetts v. EPA, EPA issued greenhouse-gas emission standards for motor vehicles and stationary sources. Because so many stationary sources emit greenhouse gases above the statutory threshold, EPA decided it would be unfeasible to require every stationary source to obtain a permit. So, EPA’s regulations exempted stationary sources whose potential emissions were less than one hundred thousand tons each year. The statutory vehicles under which EPA issued these regulations were the Clean Air Act’s “Prevention of Significant Deterioration” (PSD) provisions, 42 U.S.C. §§ 7475(a)(1), (a)(4), 7479(1), (2)(C), and its title V permitting provision, § 7661a(a). Many industry groups and several states sued in the D.C. Circuit for review of this regulation, 40 C.F.R. §§ 51.166(b)(48), 52.21(b)(49) (PSD provision), 70.2, 71.2 (title V provision), and others.[21]

That introduction out of the way, the Court had two questions before it in Utility Air Regulatory Group v. EPA: first, whether the PSD and title V permitting provisions allowed EPA to regulate stationary sources solely because of their potential for greenhouse-gas emissions above one hundred thousand tons each year. Justice Scalia wrote the opinion for this part of the opinion (Part II–A) for himself, Chief Justice Roberts, and Justices Kennedy, Thomas, and Alito. And the Court’s second question was whether EPA’s decision to require stationary sources otherwise regulated under the PSD provisions—also called “anyway” sources because they were subject to PSD “anyway”—to use the best available control technologies for greenhouse gas emissions. Justice Scalia still wrote for the Court in this part of his opinion (Part II–B) but with different majorities: the first half (Part II–B–1) joined by the same four who joined Part II–A, and the second half (Part II–B–2) joined by Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan. Suffice it to say that Utility Air Regulatory Group is a complex case.[22]

Now, to take the first question: whether EPA exceeded its authority in regulating greenhouse gases as an “air pollutant” under the PSD and title V permitting provisions. Justice Scalia ultimately rejected EPA’s interpretation and held it unlawful. The crux of his reasoning was distinguishing the holding from Massachusetts v. EPA that “any air pollutant” includes “all airborne compounds of whatever stripe.”[23] Justice Scalia looked to the structure of the Clean Air Act and EPA’s past interpretation of that term; in particular, the narrow, contextual definition of “air pollutant” in the act’s “operative provisions” versus the broad, act-wide definition Massachusetts v. EPA gave it.[24]

In short Justice Scalia relied substantially on EPA’s past, pre-Massachusetts v. EPA treatment of “air pollutant” in the act’s specific, as opposed to its generic, uses of the term. His opinion, in fact, seems to be an effort of the dissenters in Massachusetts v. EPA (himself, Chief Justice Roberts, and Justices Thomas and Alito) to limit its impact; against this hypothesis, however, is the complicating fact that Justice Kennedy, who was in the majority in Massachusetts v. EPA, joined Justice Scalia’s opinion in full in Utility Air Regulatory Group. In any case, Justice Scalia therefore concluded first that the Clean Air Act did not compel EPA to interpret “air pollutant” to include greenhouse gases in the PSD and title V permitting provisions, he then considered whether EPA’s interpretation was a reasonable, permissible one under Chevron. He concluded it was not permissible because EPA’s different treatment of “air pollutant” in the PSD and title V permitting provisions and the rest of the Clean Air Act would “overthrow . . . “the Act’s structure and design.” Moreover EPA’s interpretation “would bring about an enormous and transformative expansion in [its] regulatory authority without clear congressional authorization. . . . The power to require permits for the construction and modification of tens of thousands, and the operation of millions, of small sources nationwide falls comfortably within the class of authorizations that we have been reluctant to read into ambiguous statutory text.”[25]

However, Justice Scalia ruled in favor of EPA’s interpretation on the second question: whether EPA could require stationary sources already regulated under the PSD provisions, that is, sources regulated due to air pollution other than greenhouse gases, to apply “best available control technologies” (BACT) to greenhouse gases. The justice’s principal textual argument in favor of the EPA’s interpretation is that the BACT provision speaks broadly and applies to “each pollutant subject to regulation under this chapter,” 42 U.S.C. § 7475(a)(4), where “this chapter” is the entire Clear Air Act. Justice Scalia reasoned that the BACT provision’s “specific phrasing . . . suggests that the necessary judgment”—that is, the judgment that the BACT provision would apply broadly, to every air pollutant—“has already been made by Congress.” Moreover EPA had never interpreted the BACT use of “air pollutant” otherwise; recall that a principal reason he rejected EPA’s interpretation of “air pollutant” in the PSD and title V permitting provisions was that EPA had typically applied narrow, contextual definitions of “air pollutant” elsewhere in the statute.[26]

1.7       Michigan v. EPA (2015) (Scalia, J., writing for five-justice majority)[27]

Michigan v. EPA is yet another case raising the question of EPA’s consideration of costs and benefits before promulgating regulations. This time the question arises under the Clean Air Act’s regulation of “electric utility steam generating units,” 42 U.S.C. § 7412(n)(1). After conducting “a study of the hazards to public health reasonably anticipated to occur as a result of emissions by electric utility steam generating units of pollutants listed under” section 7412(b), then the EPA “Administrator shall regulate electric utility steam generating units under [section 7412], if the Administrator finds such regulation is appropriate and necessary after considering the results of” that study. At issue was whether the words “appropriate and necessary” required—not merely permitted—EPA to consider the costs of complying with its regulations.[28]

Industry organizations, joined by twenty-three states, sued in the D.C. Circuit for review of EPA’s rule, which, by abjuring consideration of costs was not “appropriate.” Justice Scalia, writing for a five-justice majority, agreed and refused to defer to EPA’s interpretation under Chevron because it had “strayed far beyond [the] bounds [of reasonable interpretation] when it read § 7412(n)(1) to mean it could ignore cost when deciding whether to regulate power plants.” This conclusion rests largely on the proposition that “[r]ead naturally in the present context, the phrase ‘appropriate and necessary’ requires at least some attention to cost. One would not say that it is even rational, never mind ‘appropriate,’ to impose billions of dollars in economic costs in return a few dollars in health or environmental benefits.” Justice Scalia does not turn to a dictionary to define “appropriate” for, he says, its capaciousness is obvious. [29]

This strikes me as a cop-out; does appropriateness really imply rationality? Concededly, and all else being equal, it seems irrational to spend billions to save a few dollars in health care costs. But is it inappropriate? (What if your responsibility was to reduce health care costs, whatever the costs? Then it would be appropriate, even if still irrational.) In my dictionary the most applicable definition of “appropriate” is “[s]pecially fitted or suitable, proper,” which does not get us too far.[30] “Proper” in turn means “Suitable for a specified or implicit purpose or requirement; appropriate to the circumstances or conditions; of the requisite standard or type; apt, fitting; correct, right.”[31] This latter definition—suitable under the circumstances—seems apt, and Justice Scalia concedes as much when he quotes Judge Kavanaugh’s concurring opinion below: “appropriate is the classic broad and all-encompassing term that naturally and traditionally includes consideration of all the relevant factors.”[32]

Justice Scalia’s next step is to show cost is one of those relevant factors or circumstances taken into consideration by appropriate regulations. He cites prior cases to show that traditionally, agencies include cost as one of the relevant factors when considering a regulation. And although nearby sections of the Clean Air Act explicitly require EPA to consider cost and section 7412(n)(1)(A) is silent, the justice finds this unpersuasive: the latter is silent because cost is already one of the factors wrapped up in “appropriate,” a term the former sections do not include.[33] For these are other reasons, he rejects EPA’s decision to ignore cost when considering whether a regulation is “appropriate and necessary.” And, because EPA’s interpretation was unreasonable, the Court owed it no deference.[34]

1.8       Conclusion to Post 2; Further Research

As I intimated in the introduction to my first post, Justice Scalia left a mammoth bibliography. My goal in these two posts is to begin examining his legacy in environmental law. Although my focus has been on reviewing agency interpretations of law under Chevron, the justice wrote significant opinions in the domains of standing,[35] preëmption,[36] and others.[37] If the reader is interested, I have listed in the footnotes a handful of opinions pertaining to each category.

Lastly I wish to note that the justice’s impact is not felt only through his opinions. A week before his death, the justice joined Chief Justice Roberts and Justices Kennedy, Thomas, and Alito in granting without opinion an application to stay enforcement of EPA’s October 2015 Clean Power Plan, 80 Fed. Reg. 64,662.[38] The Court’s decision to halt implementation of the regulation before the D.C. Circuit had decided the case was “unprecedented,” according to New York Times reporters Adam Liptak and Coral Davenport.[39] A testament to the justice’s convictions.

[1]     Massachusetts v. EPA, 549 U.S. 497, 549 (2007) (Scalia, J., dissenting); Michigan v. EPA, 135 S. Ct. 2699 (2015).

[2]     Massachusetts v. EPA, 549 U.S. 497, 549 (2007) (Scalia, J., dissenting), rev’g 415 F.3d 50 (D.C. Cir. 2005); see also Oral Argument, id. (No. 05-1120), http://1.usa.gov/1rqCe2h (transcript), http://oyez.org/cases/2006/05-1120.

[3]     Massachusetts v. EPA, 549 U.S. at 504–06, 510–13 (majority op.).

[4]     See id. at 516–26 (majority op.), 535–49 (Roberts, C.J., dissenting).

[5]     Id. at 528–29 (majority op.) (emphasis in original).

[6]     Id. at 555–60 (Scalia, J., dissenting).

[7]    Id. (brackets, ellipsis, and quotation marks omitted).

[8]     Id. at 560.

[9]     Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208 (2009), rev’g sub nom. Riverkeeper, Inc. v. EPA, 475 F.3d 83 (2d Cir. 2008) (Sotomayor, Cir. J.).

[10]    Id. at 212–13, 217–18.

[11]    Id. at 218–19.

[12]    Minimize, v. § 1.a, Oxford English Dictionary Online (last updated Mar. 2016), http://www.oed.com/view/Entry/118852.

[13]    Entergy, 556 U.S. at 218–20.

[14]    Id.

[15]    Decker v. Nw. Envtl. Def. Ctr., 133 S. Ct. 1326, 1339 (2013) (Scalia, J., dissenting), rev’g Nw. Envtl. Def. Ctr. v. Brown, 640 F.3d 1063 (9th Cir. 2011); see also Oral Argument, id. (Nos. 11-338, 11-347), http://1.usa.gov/1SEU63J (transcript), http://1.usa.gov/1SEU9fP (audio), http://oyez.org/cases/2012/11-338.

[16]    Id. at 1339–40 (citing Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 414 (1945); Auer v. Robbins, 519 U.S. 452 (1997); see also id. at 1340–44 (remainder of dissent).

[17]    EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1610 (2014) (Scalia, J., dissenting), rev’g 696 F.3d 7 (D.C. Cir. 2012); see also Oral Argument, id. (Nos. 12-1182, 12-1183), http://1.usa.gov/1SEU3or (transcript), http://1.usa.gov/1SEU23J (audio), http://oyez.org/cases/2013/12-1182.

[18]    EME Homer City Generation, 134 S. Ct. at 1603–07 (majority op.).

[19]    Id. at 1611–12 (Scalia, J., dissenting) (quoting Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001))).

[20]    Util. Air Regulatory Grp. v. EPA, 134 S. Ct. 2427 (2014), rev’g in part Coalition for Responsible Regulation, Inc. v. EPA, 684 F.3d 102 (D.C. Cir. 2012); see also Oral Argument, id. (Nos. 12-1146 etc.), http://1.usa.gov/1SETX03 (transcript), http://1.usa.gov/1SETXNI (audio), http://oyez.org/cases/2013/12-1146.

[21]    Util. Air Regulatory Grp., 134 S. Ct. at 2435–38 (Scalia, J., joined by Roberts, C.J., and Kennedy, Thomas, Alito, JJ.).

[22]    See id. at 2432 (distribution of justices’ majorities), 2439–48 (Parts II–A and II–B–1, joined by Roberts, C.J., and Kennedy, Thomas, and Alito, JJ.), 2448–49 (Part II–B–2, joined by Roberts, C.J., and Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, JJ.).

[23]    Massachusetts v. EPA, 549 U.S. 497, 529 (2007).

[24]    See Util. Air Regulatory Grp., 134 S. Ct. at 2439.

[25]    Id. at 2440–43; see also id. at 2443–46 (remainder of analysis on this question).

[26]    Id. at 2447–49.

[27]    Michigan v. EPA, 135 S. Ct. 2699 (2015), rev’g White Stallion Energy Ctr., LLC v. EPA, 748 F.3d 1222 (D.C. Cir. 2014); see also Oral Argument, id. (Nos. 14-46 etc.), http://1.usa.gov/1SETJ95 (transcript), http://1.usa.gov/1SETNWl (audio), http://oyez.org/cases/2014/14-46.

[28]    Michigan v. EPA, 135 S. Ct. at 2705–06.

[29]    Id. at 2706–07.

[30]    Appropriate, adj. and n. § A.5, Oxford English Dictionary Online (last updated Mar. 2016), http://oed.com/view/Entry/9870.

[31]    Proper, adj., n., and adv. § A.I.1, Oxford English Dictionary Online (last updated Mar. 2016), http://oed.com/view/Entry/152660.

[32]    Michigan v. EPA, 135 S. Ct. at 2707 (quotation marks omitted).

[33]    Id. at 2707–08 (citing Motor Vehicle Mfrs. Assn. of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983); Entergy Corp. v. Riverkeeper, Inc., 556 U.S. 208, 223 (2009) (Breyer, J., concurring in part and dissenting in part)).

[34]    See id. at 2708–12.

[35]    Summers v. Earth Island Inst., 555 U.S. 488 (2009); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 198 (2000) (Scalia, J., dissenting); Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998); Bennett v. Spear, 520 U.S. 154 (1997); Lujan v. Defs. of Wildlife, 504 U.S. 555, 557 (1992); Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 875 (1990).

[36]    CTS Corp. v. Waldburger, 134 S. Ct. 2175, 2189 (Scalia, J., concurring), reh’g denied, 135 S. Ct. 23 (2014); Engine Mfrs. Ass’n v. S. Coast Air Quality Mgmt. Dist., 541 U.S. 246 (2004); Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 616 (1991) (Scalia, J., concurring in judgment); Cal. Coastal Comm’n v. Granite Rock Co., 480 U.S. 572, 607 (1987) (Scalia, J., dissenting).

[37]    Sackett v. EPA, 132 S. Ct. 1367 (2012); Key Tronic Corp v. United States, 511 U.S. 809, 821 (1994) (Scalia, J., dissenting); Thomas v. New York, 802 F.2d 1443 (D.C. Cir. 1986); Nat. Res. Def. Council, Inc. v. Thomas, 801 F.2d 457 (D.C. Cir. 1986).

[38]    West Virginia v. EPA, 136 S. Ct. 1000 (2016) (mem.).

[39]    Adam Liptak & Coral Davenport, Justices Deal Blow to Obama Effort on Emissions, N.Y. Times, Feb. 10, 2016, at A1, http://nyti.ms/1NMsadZ; see also Lyle Denniston, Carbon Pollution Controls Put on Hold, SCOTUSblog (Feb. 9, 2016, 6:45 PM), http://bit.ly/1NMtFsA (“The fact that the ambitious carbon control plan had been developed by [EPA] may well have contributed to skepticism among some of the Justices about that agency’s arguments for avoiding a delay. Justice Scalia is a particularly strong critic of the EPA.”).