The U.S. Supreme Court session that began this month is light on major construction-related cases, but industry groups are watching lower court disputes over key issues that could soon get higher court action.
Among them are two separate cases over the legality of a 2023 U.S. Department of Labor rule that some construction groups have challenged, including the Associated General Contractors and the Associated Builders and Contractors. They claim the rule expands prevailing wage mandates beyond the scope of what the federal Davis-Bacon law allows. The cases are now on hold while the US Department of Labor reviews the Biden-era rule.
There’s also a climate case that could have far-reaching ramifications over whether states and local citizen groups can use state laws to penalize fossil fuel companies for climate change impacts. Chevron USA v. Plaquemines Parish It will consider whether companies can be held liable for environmental degradation resulting from development in coastal areas protected by the Louisiana State and Local Coastal Resource Management Act of 1978.
Suncor Energy v. County Commissioners of Boulder County, Coloradoalso driven by fossil fuel interests, raises similar questions. The court denied its review in 2022, but after a Colorado Supreme Court ruling in May that allowed lawsuits by state community groups to move forward against oil and gas developer Suncor Energy Inc., it again sought the high court’s review. The Trump administration filed a brief in support in September, stating that the US “has a substantial interest in the proper interpretation” of the state’s constitutional and statutory provisions.
Similar cases are being reviewed in district courts in Hawaii, New York, Michigan and Vermont. Because of the administration’s interest in the case and the number of others involving similar legal issues, the high court is expected to take up one next year, an environmental advocate says.
Attention is also focused on the courts’ higher reliance on issuing orders through their so-called “shadow cases,” which are emergency rulings made not through public process, often with little or no explanation. Legal observers say the case has given the administration broad deference to advanced policies halted by lower courts.
One is the recent order that allows the federal government to withdraw funding for construction and infrastructure projects out of favor with the administration. Lower courts issue carefully considered opinions while the Supreme Court “is not only short-circuiting them … it often does so without explanation, without justification, and often greenlights administration actions that are clearly in defiance of its own current precedent,” says Doug Lindner, senior director of Judiciary and Democracy at the League of Conservation Voters.
Brendan Collins, a partner at the law firm Ballard Spahr who has represented fossil fuel and renewable developers, cautions that the shadow docket orders are temporary and not the final word from judges on legal issues in underlying cases. The court this year went against its tradition of waiting for lower courts to provide a solid record before weighing the legality of administration actions. But it would be wrong to say the high court won’t clarify when the administration has overstepped its authority, he says.
“What the Supreme Court has decided, for better or for worse, is that in most cases, it will let the president do whatever he wants until the case can be formally presented to them, and then they can exercise their constitutional power to tell the president he’s wrong when he’s wrong and clarify the limits of presidential authority when he’s right.”
Tom Spiggle, founder of a Washington, D.C.-based labor law firm, says that regardless of whether the Trump administration’s strategy of seeking injunctive relief from the high court through shadow filing has a solid legal basis, “it’s working for them. They’ve been able to get a significant number of these cases before shadow filing, more than any other administration, and they’ve had favorable results.”
