On January 24, 2025, the Trump Administration asked the U.S. Supreme Court to pause briefing in several cases on the current merits docket. In making the request, Acting Solicitor General Sarah Harris explained that the new Administration needs to reevaluate prior agency positions in three cases involving the U.S. Environmental Protection Agency and one case involving the U.S. Department of Education.1 These requests could signal a departure from the outgoing Administration's policies and legal positions in cases pending before the Supreme Court, and may provide critical insights into the new Administration's legal and policy agenda.
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Once rare, it has become more common for a new presidential administration to modify the government's litigating position before the Supreme Court. The Obama Administration flipped the United States' positions in cases involving extraterritorial application of the Alien Tort Statute, federal sovereign immunity, and attorneys' fees.2 The first Trump Administration reversed course from the Obama Administration in high-profile cases touching on labor unions and the First Amendment, voting rights, and the separation of powers.3 The Biden Administration likewise changed the government's position in cases implicating the Takings Clause of the Fifth Amendment, voting rights, and criminal sentencing.4 And if history repeats itself, the current Administration's requests may foreshadow a shift in similar, politically salient cases.5
The three EPA-related cases signal that the Administration is reevaluating its position on the proper implementation of the Clean Air Act and related programs.
First, in Diamond Alternative Energy, LLC v. EPA, various oil-and-gas and alternative-energy enterprises challenged the EPA's 2022 decision to grant California a waiver from federal preemption standards under the Clean Air Act. The waiver was first conferred by the Obama Administration, then rescinded by the first Trump Administration, then reinstated by the Biden Administration. Petitioners claim it permits California to 'operate as a quasi-federal regulator on global climate change.'6 The D.C. Circuit concluded that the petitioners lacked standing to challenge the waiver, and the Supreme Court granted certiorari to address the standing question.7 Signaling a change, Acting Solicitor General Harris explained that a pause in briefing is necessary because the EPA is 'reassess[ing] the basis for and soundness' of the waiver, which 'could obviate the need' for the Court to decide the question presented in the case.8
Second, in Oklahoma v. EPA, state and industry petitioners challenged the EPA's 2023 denial of several states' ozone plans to implement the Clean Air Act's 'Good Neighbor Provision.' 9 The Tenth Circuit ruled that venue lies exclusively in the D.C. Circuit. The...
