With the U.S. Supreme Court poised to tackle the regulation of greenhouse gases and agency recess appointments this term, high court advocates say upcoming rulings could significantly alter the shape and scope of agency authority.
The federal government has been on the losing side of important regulatory cases more often than in the past under the current justices, said Andrew Pincus, a partner at Mayer Brown, speaking on a panel this morning at this year's National Law Journal Regulatory Summit.
In the past, Pincus said, the federal government would typically win on close questions about the reach of federal power. The current court sees itself as protecting states and the private sector from federal government overreach, Pincus said, which is "quite different from where the court was 20 or 30 years ago."
The big regulatory cases to watch this term involve challenges to U.S. Environmental Protection Agency regulation of greenhouse gases and air pollution that moves between states, the panelists said.
Rachel Brand, vice president and chief counsel for regulatory litigation for the National Chamber Litigation Center, called the EPA's greenhouse gas regulations the "most expensive rule in American history," citing an estimate that compliance would cost $300 to $400 billion. She said there was a groundswell of opposition, with at least 70 parties challenging the rules.
The Supreme Court agreed to hear the case after the U.S. Court of Appeals for the D.C. Circuit, in a divided decision, upheld the regulations. The court only agreed to hear arguments on a limited question involving stationary sources of emissions, but Brand said they were still "thrilled" the court decided to take up the issue of the agency's regulatory authority.
Another much-anticipated case coming up this term involves a challenge to President Barack Obama's recess appointments to the National Labor Relations Board. Brand, who is serving as outside counsel to the party challenging the appointments, said that although the case wasn't a traditional regulatory matter, it offered an opportunity for the court to take on an important separation of powers issue.
Deepak Gupta, a founding principal of litigation boutique Gupta Beck, sparred with Brand about the recess appointments issue, calling the D.C. Circuit's decision finding the appointments unconstitutional an "extreme activist position." Regardless of what side lawyers were on, though, Gupta said it was "a fascinating case for law geeks because the question is so open."
Gupta said another issue he expected the court to take on in the near future involved liability for alleged racial discrimination in housing. The court was unlikely to hear a case dealing with claims of disparate impact previously on the calendar—press reports indicated a settlement was in the works that would make the case moot—but Gupta said he thought the issue would come up again, given concerns from the business community about potential liability.
National Law Journal photo by Diego M. Radzinschi. From left, Andrew Pincus, Rachel Brand, Deepak Gupta and moderator Tony Mauro of the National Law Journal.