Amy Coney Barrett Slams Gorsuch Throwing 'Cherry-Picked' Statements at Wall

A view of the US Supreme Court in Washington, DC, June 13, 2024.

Conservative U.S. Supreme Court Justice Amy Coney Barrett criticized conservative Justice Neil Gorsuch for throwing "cherry-picked" statements at the wall in a ruling that temporarily blocks the Environmental Protection Agency (EPA) from enforcing an air-quality initiative.

Gorsuch wrote the majority opinion, joined by fellow conservative justices Clarence Thomas, Samuel Alito and Brett Kavanaugh, and Chief Justice John Roberts, on Thursday to halt enforcement of a Federal Implementation Plan (FIP) to regulate air quality against states challenging the plan in a 5-4 decision in Ohio v. Environmental Protection Agency.

The EPA sets standards for common air pollutants and states create a State Implementation Plan (SIP) to enforce said standards. Under the Clean Air Act's "Good Neighbor Provision," SIPs must prohibit emissions that significantly add to a nearby state's air pollution or interfere with their efforts to regulate air quality. The EPA may issue an FIP if the state's plan does not satisfy the requirements of the Clean Air Act and the state does not correct the shortfalls.

The EPA revised its air-quality standards in 2015, and years later the EPA announced its intention to reject more than 20 SIPs because of its belief that the plans did not meet the requirements of the Good Neighbor Provision. The EPA then implemented one FIP for all the states "based on which emissions-control measures would maximize cost-effectiveness in improving ozone levels downwind," according to the court's summary of the case. Courts paused 12 of the SIP rejections, meaning those states were, at least temporarily, not a part of the FIP. However, the FIP did not adjust for the remaining states.

Some of the remaining states and industry groups challenged the FIP in the D.C. Circuit Court of Appeals and asked if the appellate court could halt the enforcement of the FIP while they appeal. The appellate court denied the stay, but on Thursday, the Supreme Court overruled the D.C. Circuit and granted the stay.

Barrett—along with liberal Supreme Court Justices Sonia Sotomayor, Elena Kagan and Ketanji Brown Jackson—dissented.

In her opinion, Barrett wrote that the court "throws at the wall a cherry-picked assortment of EPA statements mentioning state data...None stick."

Barrett argued that the problem with the EPA statements that Gorsuch picked to support the majority opinion "is that they discuss analyses that EPA performed after it chose cost thresholds and emissions limits based on nationwide industry data.

"But it is the Court that goes out of its way to develop a failure-to-explain theory largely absent from applicants' briefs," Barrett wrote. "One can search diligently in the hundreds of pages of applicants' opening briefs for the Court's theory—that EPA failed to explain in its final rule why the FIP's cost-effectiveness thresholds for imposing emissions limits do not shift with a different mix of States—and be left wondering where the Court found it. The Court, seizing on a barely briefed failure-to-explain theory, grants relief anyway."

In the majority opinion, Gorsuch explained that the EPA assessed a state's significant contribution to downwind ozone problems "by determining what measures in upwind States would maximize cost-effective ozone-level improvements in the States downwind of them. And a different set of States might mean that the 'knee in the curve' would shift."

Barrett wrote: "Try as it might, the Court identifies no evidence that the FIP's emissions limits would have been different for a different set of States or that EPA's consideration of state-specific inputs was anything but confirmatory of the limits it calculated based on nationwide data.

"Our emergency docket requires us to evaluate quickly the merits of applications without the benefit of full briefing and reasoned lower court opinions. Given those limitations, we should proceed all the more cautiously in cases like this one with voluminous, technical records and thorny legal questions. I respectfully dissent."

Barrett has ruled differently than her conservative colleagues in the past. Most recently, she sided with the Biden administration in a dispute with Republican-led states. In a 6-3 ruling in Murthy v. Missouri, Barrett wrote in the majority opinion that the states did not have standing to sue over how social media companies moderate content on their platforms. Alito wrote the dissent and was joined by Thomas and Gorsuch.

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