New attention is being paid to the Environmental Protection Agency’s Clean Power Plan after the New York Times published memos revealing the Supreme Court’s hurried deliberations before blocking its implementation.

The Clean Power Plan, a regulation intended to cut power plants’ climate-changing carbon pollution, never went into effect. Yet it has the distinction of coming before the Supreme Court twice: once in 2016 to kick off the conservative majority’s aggressive use of the shadow docket to block federal regulations, and again in 2022 as the vehicle for formalizing the Major Questions Doctrine.

Both cases (both named West Virginia v. EPA[1]) rest on the stunningly false factual premise that the rule would have cost hundreds of billions of dollars to implement. The actual cost? Zero.

In 2016, Chief Justice Roberts cited industry claims that it would cost $480 billion to meet the Clean Power Plan’s emissions target for 2030 and that power companies and states would have to start heavy spending immediately. He called this “the most expensive regulation ever imposed.”

Many commentators on these papers have taken the Chief Justice’s recitation of the high costs at face value—as a given. That has led them to some legitimately interesting questions, such as why the justices did not balance the equities by considering the harms to the public from power plants’ climate-damaging pollution, or whether the Court’s subsequent shadow docket rulings are internally consistent or turn on the political party of the president.

But to me, the most interesting revelation from the Court’s papers is how readily the conservative majority was taken in at the start by one-sided cost estimates that turned out to be completely false. (As a lawyer for NRDC in that case, I felt PTSD upon reading those papers.)

The industry claims were wildly more than EPA’s official estimate ($5-8 billion per year, with no investments needed for several years), and Roberts completely ignored EPA’s estimate of the health and climate benefits (up to $54 billion per year).

This is a rare instance where we have empirical proof that the industry cost claims were astronomically inflated. In fact, even EPA’s estimates were wrong. After the Court blocked the rule, the power industry went ahead anyway and met EPA’s 2030 pollution target 11 years early, in 2019. And they did it at no extra cost, just by following the free market’s price signals, because gas and renewables became cheaper than coal.

Justices Breyer, Kagan, and Sotomayor urged the Chief to slow down, let the lower court evaluate the cost claims and legal merits, and at most offer states some individualized relief if they could not get extra planning time from EPA. But a five-member majority decided the situation was so urgent that they must immediately block the whole rule. (Justice Scalia died a few days later; if the Court had not moved so fast, the stay application would have failed 4-4.) After this ruling, the Court majority felt emboldened to intervene early, before lower court decisions, in many more cases.

The Clean Power Plan’s legacy does not end here. The regulation was the subject of the second West Virginia case in 2022, in which the Court formally announced the Major Questions Doctrine, collecting and rebranding an existing line of precedents. That doctrine requires clear congressional authorization if an agency adopts an unheralded, transformative statutory construction that would have vast political and economic consequences.

But now we know that the Clean Power Plan had no economic consequences whatsoever. So how could it pose a major question?

Read Chief Justice Roberts’s 2022 opinion, and you will find no mention of the $480 billion cost estimate that so animated him six years before. There’s only a vague mention of “billions” in Justice Gorsuch’s concurrence. Justice Kagan’s dissent rightly noted that the 2030 target had already been met without any regulation. She is the only one who mentioned the rule’s benefits.

The 2022 case got to the Supreme Court at all only through an unfortunate series of events: The first Trump administration had repealed the original Clean Power Plan and issued a do-nothing replacement. The D.C. Circuit vacated both the repeal and replacement, but stayed issuance of its mandate upon the Biden EPA’s pledge that it was going to write a new rule, not revive the old one. So the case should have been both prudentially moot and a substantive nothing-burger.

Roberts came up with the most tenuous reason to reject mootness: EPA might reverse its voluntary cessation pledge and require states to implement the old rule. And he framed the “major question” as a complete abstraction: Did EPA have clear authority to “substantially restructure the American energy market”? Never mind that the power sector was already restructuring itself by switching from coal to less polluting alternatives, without any regulatory costs.

So in addition to the good points commentators on the New York Times papers have made about the Court majority’s aggressive and uneven use of the shadow docket since 2016, the two Clean Power Plan cases also raise the question whether the conservative justices’ anti-regulatory inclinations driving the Major Questions Doctrine rested on any firm factual foundation.

There are some signs that late in the Biden administration, the Court may have become less willing to intervene in EPA regulations on the shadow docket. The last instance of doing so was Ohio v. EPA in 2023, which started as an emergency stay application but morphed (perhaps in response to criticism of past actions) into a more normal briefing and oral argument. That case involved challenges to EPA’s “Good Neighbor” rule requiring pollution sources in upwind states to cut emissions that cause health standard violations in downwind states. After nearly a year’s consideration, Justice Gorsuch wrote for five members that EPA acted arbitrarily by failing to respond to one specific comment, and he stayed the rule. Justice Barrett dissented, joined by the Court’s three liberals, arguing that the picayune procedural error did not warrant blocking the rule.

In summer 2024, the Court denied emergency stay requests for three other EPA regulations, on power plant carbon emissions (EPA’s third try), power plant mercury pollution, and oil and gas methane emissions.

Of course, with the reelection of President Trump, the EPA has gone completely south. We don’t presently have industry or red states bringing shadow docket stay motions to the Supreme Court over EPA rules. Instead, there are multiple lawsuits pending challenging the EPA’s deregulatory actions. When and if any of that litigation makes it to the Supreme Court in the normal course, we can hope that some justices will be a bit chastened by the experience of having fallen for the grossly exaggerated cost claims put before them in the Clean Power Plan cases.

David Doniger is a Senior Attorney and Strategist at the Natural Resources Defense Council.

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[1] West Virginia v. EPA, 577 U.S. 1126 (2016); West Virginia v. EPA, 597 U.S. 697 (2022).