Month: August 2024

Illustration by Cath Virginia / The Verge | Photos via Getty Images

The Supreme Court could stall action on climate change yet again as it weighs whether to pause new pollution regulations for coal-fired power plants.
The Environmental Protection Agency (EPA) finalized rules this year aimed at curbing greenhouse gas emissions from coal plants. But red states and industry groups are challenging the EPA in court and have asked SCOTUS to step in and stop the rules from being implemented while they duke it out.
The request is now in the Supreme Court’s so-called “shadow docket” — meaning SCOTUS can essentially issue a stay on the rules at its whim. The court has already made it way tougher for federal agencies to regulate industry since Donald Trump packed it with conservative-leaning justices. This is another opportunity to gut the EPA’s efforts to limit the pollution causing climate change.
“I would have considered this kind of request laughable just a few years ago.”
“I would have considered this kind of request laughable just a few years ago, but given the way this court is operating — I don’t laugh at anything anymore,” says Sambhav Sankar, senior vice president for programs at the nonprofit environmental law organization Earthjustice.
The rules are a cornerstone of the Biden administration’s efforts to meet climate goals set under the Paris agreement. They require coal plants expected to continue operating for at least 15 years to reduce their climate pollution by 90 percent. Coal happens to be the dirtiest fossil fuel, creating more planet-heating carbon dioxide when burned than oil or gas.

When the EPA finalized the plan in April, it was arguably only a partial victory for environmental and health advocates. The rules had to comply with the Supreme Court’s 2022 decision on West Virginia v. Environmental Protection Agency. It was a monumental opinion that strengthened the “major questions” doctrine, the idea that federal agencies shouldn’t have the authority to call the shots on issues of major national significance without Congress passing legislation explicitly allowing the agency to do so. The decision meant that the EPA wouldn’t be allowed to determine whether the US gets its electricity from fossil fuels or cleaner sources of energy like wind and solar.
As a result, the EPA’s plans to rein in the greenhouse gas emissions allow fossil fuel power plants to keep running as long as they install technologies that capture carbon dioxide emissions. Fossil fuel companies have championed carbon capture and storage as a way to fight climate change without having to give up coal, oil, or gas. But relying on carbon capture lets down health and environmental advocates who had hoped that a transition to renewable energy would fight climate change and push utilities to phase out fossil fuel plants that spew soot and other kinds of pollutants into nearby neighborhoods.

Now, industry is arguing that carbon capture and storage (CCS) technologies aren’t even ready to help fight climate change — at least not to the degree the EPA says is feasible in its power plant rules. Since July, trade groups representing utilities and mining companies and a smattering of red states, led by West Virginia and Ohio, have filed applications asking the Supreme Court to issue a stay on the EPA’s new rules for CO2 emissions (as well as separate rules for hazardous pollutants, including mercury). The US Court of Appeals for the District of Columbia Circuit previously declined to issue a stay.
The petitioners argue that capturing 90 percent of CO2 isn’t an achievable goal yet — that the technology hasn’t been demonstrated at that scale and that there aren’t pipelines in place to transport and store the greenhouse gas safely once it’s been captured.
“With no way to comply with the 90% CCS system, the Rule requires operators to shift electricity generation,” the National Rural Electric Cooperative Association says in its application for a stay. “EPA is once again trying to transform the power sector by forcing a shift in electricity generation to its favored sources.” They’re basically invoking the major questions doctrine again to challenge the new rules.
The Biden administration defended the EPA’s rules in a response filed to the Supreme Court this week, saying that the agency has vetted the technology and set achievable carbon capture goals. The case “does not involve the type of fundamental statutory-interpretation issue that might warrant this Court’s intervention,” the EPA argues. And it points out that a federal appeals court chose not to issue a stay on the matter last month, in a decision that says the litigants haven’t shown that they’ll be able to successfully challenge the merits of the rule, nor that the case involves a “major question.” Moreover, deadlines to comply with the rules don’t kick in until 2030 or 2032 — making it hard for the petitioners to show that they’d suffer “irreparable harm” without a stay.
Nevertheless, the groups have since asked the Supreme Court to issue a stay through its emergency — or shadow — docket. The emergency docket, once reserved for extremely time-sensitive issues like staying executions, is now crowded with requests to pause environmental regulations. It’s an expedited process, allowing the court to issue decisions without much briefing on the issue or hearing oral arguments on the case.
“Many lawyers and others find it deeply disturbing.”
“Many lawyers and others find it deeply disturbing,” says Michael Gerrard, founder and faculty director of Columbia University’s Sabin Center for Climate Change Law. “The Supreme Court can do something colossally important without the full information in front of it.”
It’s a trend that’s grown since 2016 when the Supreme Court issued a surprise stay on the Obama administration’s attempt at regulating greenhouse gas emissions from power plants. The Obama-era rules never went into effect and were eventually rolled back by the Trump administration.
Now, history could repeat itself. Donald Trump has pledged to throw out power plant emissions rules once again on the presidential campaign trail. And the Supreme Court can decide at any moment whether to grant the stay. Their decision could potentially influence the case the US Court of Appeals for the DC Circuit is still considering over whether the rules should be struck down altogether.

SCOTUS’s decision on the stay could potentially also influence new rules the EPA is still crafting for existing gas-fired power plants that make up a bigger source of electricity than coal in the US. Those rules aren’t expected until after the November elections, giving Trump another chance to reverse course.
“I think what will be more relevant will be the outcome of the coming election,” Sankar says. Then again, the Supreme Court has shocked the legal community with landmark decisions lately that hamstring the EPA’s ability to craft regulation. In June, it overturned a legal doctrine called Chevron deference that previously allowed federal courts to defer to the EPA and other federal agencies in disputes over how to interpret ambiguous language in legislation.
“If the untrained, unscientific judges of the Supreme Court show that they are once again willing to second guess the scientists at EPA, then it will be understandable if those scientists get a little more gun shy,” Sankar says.

Illustration by Cath Virginia / The Verge | Photos via Getty Images

The Supreme Court could stall action on climate change yet again as it weighs whether to pause new pollution regulations for coal-fired power plants.

The Environmental Protection Agency (EPA) finalized rules this year aimed at curbing greenhouse gas emissions from coal plants. But red states and industry groups are challenging the EPA in court and have asked SCOTUS to step in and stop the rules from being implemented while they duke it out.

The request is now in the Supreme Court’s so-called “shadow docket” — meaning SCOTUS can essentially issue a stay on the rules at its whim. The court has already made it way tougher for federal agencies to regulate industry since Donald Trump packed it with conservative-leaning justices. This is another opportunity to gut the EPA’s efforts to limit the pollution causing climate change.

“I would have considered this kind of request laughable just a few years ago, but given the way this court is operating — I don’t laugh at anything anymore,” says Sambhav Sankar, senior vice president for programs at the nonprofit environmental law organization Earthjustice.

The rules are a cornerstone of the Biden administration’s efforts to meet climate goals set under the Paris agreement. They require coal plants expected to continue operating for at least 15 years to reduce their climate pollution by 90 percent. Coal happens to be the dirtiest fossil fuel, creating more planet-heating carbon dioxide when burned than oil or gas.

When the EPA finalized the plan in April, it was arguably only a partial victory for environmental and health advocates. The rules had to comply with the Supreme Court’s 2022 decision on West Virginia v. Environmental Protection Agency. It was a monumental opinion that strengthened the “major questions” doctrine, the idea that federal agencies shouldn’t have the authority to call the shots on issues of major national significance without Congress passing legislation explicitly allowing the agency to do so. The decision meant that the EPA wouldn’t be allowed to determine whether the US gets its electricity from fossil fuels or cleaner sources of energy like wind and solar.

As a result, the EPA’s plans to rein in the greenhouse gas emissions allow fossil fuel power plants to keep running as long as they install technologies that capture carbon dioxide emissions. Fossil fuel companies have championed carbon capture and storage as a way to fight climate change without having to give up coal, oil, or gas. But relying on carbon capture lets down health and environmental advocates who had hoped that a transition to renewable energy would fight climate change and push utilities to phase out fossil fuel plants that spew soot and other kinds of pollutants into nearby neighborhoods.

Now, industry is arguing that carbon capture and storage (CCS) technologies aren’t even ready to help fight climate change — at least not to the degree the EPA says is feasible in its power plant rules. Since July, trade groups representing utilities and mining companies and a smattering of red states, led by West Virginia and Ohio, have filed applications asking the Supreme Court to issue a stay on the EPA’s new rules for CO2 emissions (as well as separate rules for hazardous pollutants, including mercury). The US Court of Appeals for the District of Columbia Circuit previously declined to issue a stay.

The petitioners argue that capturing 90 percent of CO2 isn’t an achievable goal yet — that the technology hasn’t been demonstrated at that scale and that there aren’t pipelines in place to transport and store the greenhouse gas safely once it’s been captured.

“With no way to comply with the 90% CCS system, the Rule requires operators to shift electricity generation,” the National Rural Electric Cooperative Association says in its application for a stay. “EPA is once again trying to transform the power sector by forcing a shift in electricity generation to its favored sources.” They’re basically invoking the major questions doctrine again to challenge the new rules.

The Biden administration defended the EPA’s rules in a response filed to the Supreme Court this week, saying that the agency has vetted the technology and set achievable carbon capture goals. The case “does not involve the type of fundamental statutory-interpretation issue that might warrant this Court’s intervention,” the EPA argues. And it points out that a federal appeals court chose not to issue a stay on the matter last month, in a decision that says the litigants haven’t shown that they’ll be able to successfully challenge the merits of the rule, nor that the case involves a “major question.” Moreover, deadlines to comply with the rules don’t kick in until 2030 or 2032 — making it hard for the petitioners to show that they’d suffer “irreparable harm” without a stay.

Nevertheless, the groups have since asked the Supreme Court to issue a stay through its emergency — or shadow — docket. The emergency docket, once reserved for extremely time-sensitive issues like staying executions, is now crowded with requests to pause environmental regulations. It’s an expedited process, allowing the court to issue decisions without much briefing on the issue or hearing oral arguments on the case.

“Many lawyers and others find it deeply disturbing,” says Michael Gerrard, founder and faculty director of Columbia University’s Sabin Center for Climate Change Law. “The Supreme Court can do something colossally important without the full information in front of it.”

It’s a trend that’s grown since 2016 when the Supreme Court issued a surprise stay on the Obama administration’s attempt at regulating greenhouse gas emissions from power plants. The Obama-era rules never went into effect and were eventually rolled back by the Trump administration.

Now, history could repeat itself. Donald Trump has pledged to throw out power plant emissions rules once again on the presidential campaign trail. And the Supreme Court can decide at any moment whether to grant the stay. Their decision could potentially influence the case the US Court of Appeals for the DC Circuit is still considering over whether the rules should be struck down altogether.

SCOTUS’s decision on the stay could potentially also influence new rules the EPA is still crafting for existing gas-fired power plants that make up a bigger source of electricity than coal in the US. Those rules aren’t expected until after the November elections, giving Trump another chance to reverse course.

“I think what will be more relevant will be the outcome of the coming election,” Sankar says. Then again, the Supreme Court has shocked the legal community with landmark decisions lately that hamstring the EPA’s ability to craft regulation. In June, it overturned a legal doctrine called Chevron deference that previously allowed federal courts to defer to the EPA and other federal agencies in disputes over how to interpret ambiguous language in legislation.

“If the untrained, unscientific judges of the Supreme Court show that they are once again willing to second guess the scientists at EPA, then it will be understandable if those scientists get a little more gun shy,” Sankar says.

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Illustration by Alex Castro / The Verge

An appeals court revived a lawsuit against the anonymous messaging service Yolo, which allegedly broke a promise to unmask bullies on the app. In a ruling issued Thursday, the Ninth Circuit Court of Appeals said Section 230 of the Communications Decency Act shouldn’t block a claim that Yolo misrepresented its terms of service, overruling a lower court decision. But it determined the app can’t be held liable for alleged design defects that allowed harassment, letting a different part of that earlier ruling stand.
Yolo was a Snapchat-integrated app that let users send anonymous messages, but in 2021, it was hit with a lawsuit after a teenage user died by suicide. The boy, Carson Bride, had received harassing and sexually explicit messages from anonymized users that — he believed — he likely knew. Bride and his family attempted to contact Yolo for help, but Yolo allegedly never answered, and in some cases, emails to the company simply bounced. Snap banned Yolo and another app targeted in the lawsuit, and a year later, it banned all anonymous messaging integration.
There was “no way” Yolo’s ten-person staff could police the app, say families
Bride’s family and a collection of other aggrieved parents argued that Yolo broke a legally binding promise to its users. They pointed to a notification where Yolo claimed people would be banned for inappropriate use and deanonymized if they sent “harassing messages” to others. But as the ruling summarizes, the plaintiffs argued that “with a staff of no more than ten people, there was no way Yolo could monitor the traffic of ten million active daily users to make good on its promise, and it in fact never did.” Additionally, they claimed Yolo should have known its anonymous design facilitated harassment, making it defective and dangerous.
A lower court threw out both of these claims, saying that under Section 230, Yolo couldn’t be held responsible for its users’ posts. The appeals court was more sympathetic. It accepted the argument that families were instead holding Yolo responsible for promising users something it couldn’t deliver. “Yolo repeatedly informed users that it would unmask and ban users who violated the terms of service. Yet it never did so, and may have never intended to,” writes Judge Eugene Siler, Jr. “While yes, online content is involved in these facts, and content moderation is one possible solution for Yolo to fulfill its promise, the underlying duty … is the promise itself.”
“Today’s decision does not expand liability for internet companies or make all violations of their own terms of service into actionable claims”
The Yolo suit built on a previous Ninth Circuit ruling that let another Snap-related lawsuit circumvent Section 230’s shield. In 2021, it found Snap could be sued for a “speed filter” that could implicitly encourage users to drive recklessly, even if users were responsible for making posts with that filter. (The overall case is still ongoing.) On top of their misrepresentation claim, the plaintiffs argued Yolo’s anonymous messaging capability was similarly risky, an argument the Ninth Circuit didn’t buy — “we refuse to endorse a theory that would classify anonymity as a per se inherently unreasonable risk,” Siler wrote.
This recent ruling is part of an extended push-and-pull over Section 230’s scope. Several cases have sought to claim that apps are illegally defective if they lead to harassment or other harms, even if those harms were committed by users. Despite periodic victories, it’s still far from an established doctrine, and the Supreme Court declined to consider it for the Herrick v. Grindr case back in 2019. The Supreme Court also declined to pare down Section 230 in a case over whether YouTube and Twitter supported illegal terrorism. After this Ninth Circuit ruling, Yolo can still mount a defense that it reasonably attempted to enforce its user agreement, and the case isn’t over.
Even so, letting users sue a company for not upholding its content policy could theoretically allow lawsuits against nearly any service that doesn’t practice (often impossibly) perfect moderation. The Ninth Circuit insists that’s not what it’s doing. “Today’s decision does not expand liability for internet companies or make all violations of their own terms of service into actionable claims,” Siler writes. “In our caution to ensure [Section] 230 is given its fullest effect, we must resist the corollary urge to extend immunity beyond the parameters established by Congress and thereby create a free-wheeling immunity for tech companies.”

Illustration by Alex Castro / The Verge

An appeals court revived a lawsuit against the anonymous messaging service Yolo, which allegedly broke a promise to unmask bullies on the app. In a ruling issued Thursday, the Ninth Circuit Court of Appeals said Section 230 of the Communications Decency Act shouldn’t block a claim that Yolo misrepresented its terms of service, overruling a lower court decision. But it determined the app can’t be held liable for alleged design defects that allowed harassment, letting a different part of that earlier ruling stand.

Yolo was a Snapchat-integrated app that let users send anonymous messages, but in 2021, it was hit with a lawsuit after a teenage user died by suicide. The boy, Carson Bride, had received harassing and sexually explicit messages from anonymized users that — he believed — he likely knew. Bride and his family attempted to contact Yolo for help, but Yolo allegedly never answered, and in some cases, emails to the company simply bounced. Snap banned Yolo and another app targeted in the lawsuit, and a year later, it banned all anonymous messaging integration.

Bride’s family and a collection of other aggrieved parents argued that Yolo broke a legally binding promise to its users. They pointed to a notification where Yolo claimed people would be banned for inappropriate use and deanonymized if they sent “harassing messages” to others. But as the ruling summarizes, the plaintiffs argued that “with a staff of no more than ten people, there was no way Yolo could monitor the traffic of ten million active daily users to make good on its promise, and it in fact never did.” Additionally, they claimed Yolo should have known its anonymous design facilitated harassment, making it defective and dangerous.

A lower court threw out both of these claims, saying that under Section 230, Yolo couldn’t be held responsible for its users’ posts. The appeals court was more sympathetic. It accepted the argument that families were instead holding Yolo responsible for promising users something it couldn’t deliver. “Yolo repeatedly informed users that it would unmask and ban users who violated the terms of service. Yet it never did so, and may have never intended to,” writes Judge Eugene Siler, Jr. “While yes, online content is involved in these facts, and content moderation is one possible solution for Yolo to fulfill its promise, the underlying duty … is the promise itself.”

The Yolo suit built on a previous Ninth Circuit ruling that let another Snap-related lawsuit circumvent Section 230’s shield. In 2021, it found Snap could be sued for a “speed filter” that could implicitly encourage users to drive recklessly, even if users were responsible for making posts with that filter. (The overall case is still ongoing.) On top of their misrepresentation claim, the plaintiffs argued Yolo’s anonymous messaging capability was similarly risky, an argument the Ninth Circuit didn’t buy — “we refuse to endorse a theory that would classify anonymity as a per se inherently unreasonable risk,” Siler wrote.

This recent ruling is part of an extended push-and-pull over Section 230’s scope. Several cases have sought to claim that apps are illegally defective if they lead to harassment or other harms, even if those harms were committed by users. Despite periodic victories, it’s still far from an established doctrine, and the Supreme Court declined to consider it for the Herrick v. Grindr case back in 2019. The Supreme Court also declined to pare down Section 230 in a case over whether YouTube and Twitter supported illegal terrorism. After this Ninth Circuit ruling, Yolo can still mount a defense that it reasonably attempted to enforce its user agreement, and the case isn’t over.

Even so, letting users sue a company for not upholding its content policy could theoretically allow lawsuits against nearly any service that doesn’t practice (often impossibly) perfect moderation. The Ninth Circuit insists that’s not what it’s doing. “Today’s decision does not expand liability for internet companies or make all violations of their own terms of service into actionable claims,” Siler writes. “In our caution to ensure [Section] 230 is given its fullest effect, we must resist the corollary urge to extend immunity beyond the parameters established by Congress and thereby create a free-wheeling immunity for tech companies.”

Read More