On Friday, the EPA issued a new rule that significantly impacts a pending case. The government did not notify the Court till Friday, when the regulation was issued.
Today, the Chief benchslapped a government lawyer, and asked him effectively, what did you know, and when did you know it. This case had over 850 pages of briefing (an irony for case about logging), yet not a single note was made in the government’s brief that a new rule may be issued.
The EPA is the government’s client, so the SG likely knew at some point before Friday.
The Chief expressed incredulity that a regulation could be rushed through in a few months, and released on the eve of oral arguments, without an explanation.
Yet another episode in the Chief’s displeasure with the government’s position.
Sorry Chief, 4 more years.
I’ll have an update when the transcripts are out.
I’m off to give my talk at Georgetown Law Center in a bit. i’ll try to stream the discussion.
Update: Transcript is here in 11-338. Decker v. Northwest Environmental Defense Center. Poor Malcolm Stewart. He was the same guy who got beat up in Citizens United for saying the government could ban books. Here is the relevant bit from argument (it takes up almost 3 full pages of the transcript):
MR. STEWART: Mr. Chief Justice, and may it please the Court: On Friday, the EPA administrator signed a new rule that amends EPA’s existing regulatory definition of the term “stormwater discharge associated with industrial activity.” The new rulemaking specifically disapproves the Ninth Circuit’s decision in this case and states explicitly that the only facilities under SIC Code 2411 that are industrial are rock crushing, gravel washing, log sorting and log storing.
CHIEF JUSTICE ROBERTS: Were you as surprised as we were to learn about that final rule?
MR. STEWART: No, we were not.
CHIEF JUSTICE ROBERTS: When did you learn that the final rule would be issued on Friday?
MR. STEWART: I learned on Friday morning that the final rule would be issued. I learned on Friday afternoon that the final rule had been issued. Within five minutes of that time, I alerted counsel for both the Petitioners and -
CHIEF JUSTICE ROBERTS: You had no idea before Friday that this was coming out?
MR. STEWART: I knew that it was a strong possibility — I knew that it was a strong possibility that it would come out. The EPA had issued a notice in September of proposed rulemaking. There was a notation on OMB’s website in early November to the effect that the rule had been transmitted for final approval by OMB.
CHIEF JUSTICE ROBERTS: In early November? MR. STEWART: In early November.
CHIEF JUSTICE ROBERTS: Maybe in the future you could let us know when something as definite as that comes. There were 875 pages on the merits bbriefing in this case, and if we knew that the final rule was imminent, we could have rescheduled the case for April or something along those lines.
MR. STEWART: I’m sorry, Your Honor. We -you know, we did explain in the opening brief that the rule had been -
CHIEF JUSTICE ROBERTS: Oh, I know, that there was a proposed rule. Is it your experience that proposed EPA rules become final within a couple of months particularly?
MR. STEWART: No, I think that — well, I think this happened more quickly than it usually does, but I think we intended respect for the Court’s processes rather than disrespect. Obviously, it’s suboptimal for the new rule to be issued the Friday before oral argument; but, it would have been even worse, I think, from the standpoint of the parties’ and the Court’s decision-making processes if the rule had been issued a week or two after the Court heard oral argument.
CHIEF JUSTICE ROBERTS: Well, maybe. And it would have been best if we had known about this in early November
I thought it was harsh. Others I spoke to said it was respectful. The Chief had his hand on his cheek the entire time. It kinda reminded me of the Willy Wonka meme. So, tell me how you had no idea the EPA would change the rule in our case 3 days before arguments.
Oh and Jeffrey Fisher totally pulled a Kanye on Justice Sotomayor. He said:
But if I can finish my question