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Supreme Court

Leaked Supreme Court Memos Reveal Why Court Stayed Clean Power Plan (Setting Important "Shadow Docket" Precedent in the Process)

A New York Times scoop reveals that Chief Justice Roberts was concerned that the EPA would (again) get away with imposing unlawful burdens on utilities.

Jonathan H. Adler | 4.18.2026 9:35 AM

This morning's New York Times contains a blockbuster scoop by Adam Liptak and Jodi Kantor: Internal memos from the Supreme Court discussing whether to stay the Obama Administration's Clean Power Plan. The NYT has published a narrative story, a chronology of the memos, a list of "takeaways," and the documents themselves.

The documents confirm what a few of us suggested at the time: The Court's majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.

As a memo by the Chief Justice notes, the EPA had crowed that the Court's Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:

Past experience makes the case for irreparable harm: On June 29 2015 we ruled that the EPA's Mercury and Air Toxics Standards violated the Clean Air Act See Michigan v EPA, 135 S. Ct 2699. One day later the EPA announced that it was confident it was still on track to reduce the targeted pollutants in part because the majority of power plants  are already in compliance or well on their way to compliance Janet McCabe Acting Asst Admin for Office of Air and Radiation In Perspective: the Supreme Court's Mercury and Air........

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