This morning's New York Times contains a blockbuster scoop by Adam Liptak and Jodi Kantor: Internal memos from the Supreme Court discussing whether to stay the Obama Administration's Clean Power Plan. The NYT has published a narrative story, a chronology of the memos, a list of "takeaways," and the documents themselves.
The documents confirm what a few of us suggested at the time: The Court's majority was concerned that, without a stay, the Environmental Protection Agency would get away with imposing unlawful regulatory burdens on electric utilities, as has occurred with the mercury regulations held unlawful by the Court in Michigan v. EPA.
As a memo by the Chief Justice notes, the EPA had crowed that the Court's Michigan decision was effectively irrelevant because utilities had been forced to spend billions of dollars to comply while waiting for the litigation to resolve, and there were reasons to fear history would repeat itself. As the Chief Justice wrote in one memo:
