Chief Justice John Roberts Jr. once said, "I have yet to put down a brief and say, 'I wish that had been longer.'" The Supreme Court appears to be embracing that sentiment in its management of the upcoming set of cases challenging the Environmental Protection Agency's regulation of greenhouse gases.
In an order issued Tuesday, the court told the six petitioners in the consolidated case to keep their legal briefs to 45,000 words total -- a sharp cut, given that the nine parties would otherwise have been able to file nine separate briefs of 15,000 words each, or 135,000 words total.
“Ouch, we’ll miss those words," said Jack McMackin of Williams & Jensen, who represents a group of plaintiffs led by the Energy-Intensive Manufacturers Working Group on Greenhouse Gas Regulation. "But who could blame them. I think they already have a headache, just thinking about the briefing. So do I."
McMackin added, "There may be an opportunity in it. I think the court is trying to encourage some joint briefs. While that is unlikely for some petitioners, I think there is at least one potentially great—and very useful to the court in straightening this mess out—joint brief that is possible.”
The court granted review to the six petitions on October 15, then ordered the parties to come up with a plan for consolidating the briefing and avoiding repetitive arguments. A week later, Peter Keisler of Sidley Austin submitted a plan on behalf of both sides. For those challenging the EPA regulations he requested permission for five briefs for a total of 75,000 words. But that apparently was not enough of a cut for the court.
Those defending the EPA regulations sought permission for three briefs of 15,000 words each -- one for the EPA, one for environmental groups, and one for states that like the regulations. That also was too much for the court, which gave the SG 15,000 words but the other two groups only 10,000 words each.
Keisler told the court that the challengers would have a problem with fewer than five briefs or 75,000 words because parties have staked out positions that are "in tension with others or even possibly mutually inconsistent." Keisler's client the American Chemistry Council, for example, accepts regulation of greenhouse gases from sources that also emit more traditional pollutants like lead or sulfur dioxide. But states led by Texas dispute the EPA's authority altogether and urge the court to overturn or reconsider Massachusetts v. EPA, the high court's 2007 precedent that established EPA power to restrict greenhouse gas emissions by motor vehicles.
The court has not scheduled arguments yet, but they are likely to take place in February. The justices said one hour would be allotted for argument, but it is conceivable that the parties will seek expanded or at least divided argument time to present the various positions.