Louisiana v. American Rivers

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1 Cite as: 596 U. S. ____ (2022)
K
AGAN, J., dissenting
SUPREME COURT OF THE UNITED STATES
No. 21A539
LOUISIANA, ET AL. v. AMERICAN RIVERS, ET AL.
ON APPLICATION FOR STAY
[April 6, 2022]
The application for a stay presented to JUSTICE KAGAN
and by her referred to the Court is granted. The district
court’s October 21, 2021 order, insofar as it vacates the cur-
rent certification rule, 40 C.F.R. Part 121, is stayed pending
disposition of the appeal in the United States Court of Ap-
peals for the Ninth Circuit and disposition of the petition
for a writ of certiorari, if such a writ is timely sought.
Should the petition for a writ of certiorari be denied, this
order shall terminate automatically. In the event the peti-
tion for a writ of certiorari is granted, the order shall termi-
nate upon the sending down of the judgment of this Court.
J
USTICE KAGAN, with whom THE CHIEF JUSTICE,
J
USTICE BREYER, and JUSTICE SOTOMAYOR join, dissenting.
Five months after the District Court remanded and va-
cated an Environmental Protection Agency rule, a group of
States and industry organizations have asked us to stay the
decision pending appeal, claiming that they will otherwise
suffer irreparable harm. I would deny the request. This
Court may stay a decision under review in a court of appeals
“only in extraordinary circumstances” and “upon the
weightiest considerations.” Williams v. Zbaraz, 442 U. S.
1309, 1311 (1979) (Stevens, J., in chambers); Packwood v.
Senate Select Comm. on Ethics, 510 U. S. 1319, 1320 (1994)
(Rehnquist, C. J., in chambers). The applicants here have
not met our standard because they have failed to substan-

2 LOUISIANA v. AMERICAN RIVERS
K
AGAN, J., dissenting
tiate their assertions of irreparable harm. The Court there-
fore has no warrant to grant emergency relief.
To obtain a stay in a case pending before an appellate
court, a party (like the applicants here) must make a show-
ing of “irreparabl[e] injur[y] absent a stay.” Nken v. Holder,
556 U. S. 418, 434 (2009); see, e.g., Teva Pharmaceuticals
USA, Inc. v. Sandoz, Inc., 572 U. S. 1301, 1301–1302 (2014)
(R
OBERTS, C. J., in chambers). “A stay is an intrusion into
the ordinary processes of administration and judicial re-
view.” Nken, 556 U. S., at 427 (internal quotation marks
omitted). It disrupts the usual manner of hearing and con-
sidering an appeal before rendering a decision and granting
relief. Our disruption of that normal order is justified only
“rarely.” Heckler v. Lopez, 463 U. S. 1328, 1330 (1983)
(Rehnquist, J., in chambers). An applicant must show more
than a likelihood of prevailing on the merits in the appellate
court. It must also show an exceptional need for immediate
relief. That means the applicant must (at the least) present
evidence of irreversible injury—harm occurring during the
appeals process that cannot be later redressed. And that
evidence must clear a high bar. “[S]imply showing some
possibility of irreparable injury fails to satisfy” our test.
Nken, 556 U. S., at 434–435 (internal quotation marks and
citation omitted). The applicant must offer concrete proof
that irreparable harm is “likel[y]” to occur. Hollingsworth
v. Perry, 558 U. S. 183, 190 (2010) (per curiam).
The applicants here have failed to meet that burden.
They claim that the vacated rule gave them “protections”
against States that previously “abuse[d]” their statutory
authority to review infrastructure projects for compliance
with water-quality standards. Application 25. But the ap-
plicants have not identified a single project that a State has
obstructed in the five months since the District Court’s de-
cision. Still more, they have not cited a single project that
the court’s ruling threatens, or is likely to threaten, in the
time before the appellate process concludes. The request

3 Cite as: 596 U. S. ____ (2022)
K
AGAN, J., dissenting
for a stay rests on simple assertions—on conjectures, un-
supported by any present-day evidence, about what States
will now feel free to do. And the application fails to show
that proper implementation of the reinstated regulatory re-
gime—which existed for 50 years before the vacated rule
came into effect—is incapable of countering whatever state
overreach may (but may not) occur. Even the applicants’
own actions belie the need for a stay: Twice, the applicants
waited a month before seeking that relief (the first time in
the District Court, the second time here). While the appli-
cants thus delayed, the appellate process went forward: The
case will be fully briefed in the Court of Appeals next
month. The applicants have given us no good reason to
think that in the remaining time needed to decide the ap-
peal, they will suffer irreparable harm.
By nonetheless granting relief, the Court goes astray. It
provides a stay pending appeal, and thus signals its view of
the merits, even though the applicants have failed to make
the irreparable harm showing we have traditionally re-
quired. That renders the Court’s emergency docket not for
emergencies at all. The docket becomes only another place
for merits determinations—except made without full brief-
ing and argument. I respectfully dissent.