CHAMBERS OF

JUSTICE ELENA KAGAN

Supreme Court of the United States Washington, D. C. 20343

February 7, 2016

Memorandum to the Conference

Re: 15A773 West Virginia, et al. v. EPA, et al.
15A776 Basin Elec. Power Cooperative, et al. v. EPA, et al. 15A787 Chamber of Commerce, et al. v. EPA, et al.
15A778 Murray Energy Corp., et al. v. EPA, et al.

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15A793 North Dakota v. EPA, et al.

I agree with Steve that we should direct the States to seek an extension from the EPA before asking this Court to intervene. We could also include, at the end of such an order, language along the lines of the following, to encourage the D. C. Circuit to act expeditiously in its resolution of this matter: “In light of that court’s agreement to consider this case on an expedited schedule, we are confident that it will [or even: we urge it to] render a decision with appropriate dispatch.” See Doe v. Gonzales, 546 U. S. 1301, 1308 (2005) (GINSBURG, J., in chambers); Kemp v. Smith, 463 U. S. 1344, 1345 (1983) (Powell, J., in chambers); Holtzman v. Schlesinger, 414 U. S. 1304, 1305, n. 2 (1973) (Marshall, J., in chambers).

The unique nature of the relief sought in these applications gives me real pause. The applicants ask us to enjoin a regulation pending initial review in the court of appeals. As we often say, “we are a court of review, not of first view.” See Cutter v. Wilkinson, 544 U. S. 709, 718 n. 7 (2005); cf. Doe, 546 U. S., at 1308 (“Re- spect for the assessment of the Court of Appeals is especially warranted when that court is proceeding to adjudication on the merits with due expedition.”). As far as I can tell, it would be unprecedented for us to second-guess the D. C. Circuit’s deci sion that a stay is not warranted, without the benefit of full briefing or a prior judi- cial decision.

On the merits, this is a difficult case involving a complex statutory and regu- latory regime. Although the parties’ abbreviated discussion of the issues at stake here makes it difficult for me to determine with any confidence which side is likely to ultimately prevail, it seems to me that at this stage the government has the bet- ter of the arguments. The Chief’s memo focuses on the applicants’ argument that the “best system of emission reduction” refers “solely [to] installation of control technologies (e.g., scrubbers).” 2/5 Memo, at 2. The ordinary meaning of “system” is in fact quite broad, appearing to encompass what EPA has done here. Of course, we would want to consider this term in the larger context of the Clean Air Act’s regula-

Burger lovers take warning: neighborhood cookouts could be more expensive this summer, thanks to conflict in the Middle East.

Global tensions are pushing up energy prices, resulting in higher costs for beef and the propane used to fuel backyard grills — just in time for Americans getting ready for barbecue season.

“The impact of ongoing challenges in the Middle East on energy prices impacts nearly every facet of the U.S. economy and beef-cattle are not immune,” Glynn Tonsor, a professor of agricultural economics at Kansas State University, told Fox News Digital.

THE SINGLE CRUSHING PROBLEM AMERICAN CATTLE RANCHERS WISH TRUMP WOULD FIX INSTEAD

Ranchers rely on energy at nearly every step of their process, from fueling tractors in the field to using trucks to transport cattle, and those higher costs are often passed on to consumers, Tonsor explained.

Those pressures are showing up at the pump. The national average for a gallon of gas now stands at approximately $4.09, up roughly 93 cents from just one month ago, according to AAA, with costs climbing across nearly every region.

Diesel, a key fuel for freight and shipping, has climbed to $5.61, up about $2.03 over the past year, making it more expensive to move cattle and beef across the country.

The ripple effects go far beyond beef.

Propane, the fuel powering many backyard grills, is also getting more expensive as global energy markets tighten, in part, because countries in the Middle East are such major suppliers to the world.

U.S. propane prices at the Mont Belvieu hub, the industry benchmark for this type of power, have surged nearly 19% since the conflict began in late February.

BEEF PRICES ARE CLOSE TO RECORD HIGHS — BUT AMERICANS AREN’T CUTTING BACK

But higher energy costs are only part of the story.

Cattle supply remains slow to respond. Unlike oil or metals, where supply can be increased relatively quickly, cattle production takes years to ramp up after a dip.

The U.S. cattle herd is now at its smallest size in 75 years, which is keeping the supply tight following years of drought, rising costs and an aging ranching workforce resulting in producers needing to cut back.

That tight supply is already pushing prices higher — and the Iran conflict is only proliferating the issue.

According to U.S. Department of Agriculture data, the average price of beef in grocery stores climbed from about $8.70 per pound in March 2025 to $10.08 a year later — an increase of roughly 16%.

Subsequently, even if energy prices ease, beef prices likely won’t be quick to follow.

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For shoppers, that means prices may remain high — or climb further — depending on whether consumers keep coughing-up cash for steak and burgers, or opt to switch to cheaper alternatives.

Much of that comes down to forces far beyond Americans’ backyard that continue to shape the cost of firing up the grill this summer.

A federal judge has blocked Nexstar Media Group’s $6.2-billion acquisition of its rival, upending the already consummated union of the nation’s two largest television station groups.

U.S. District Court Chief Judge Troy L. Nunley on Friday issued a preliminary injunction that forbids Nexstar, which owns KTLA-TV Channel 5 in Los Angeles, and its takeover-target, Tegna Inc., from combining operations amid a legal dispute with California Atty. Gen. Rob Bonta and seven other state attorneys general.

The order takes effect Tuesday.

“Nexstar must permit Tegna to continue operating as a separate and distinct, independently managed business unit from Nexstar,” Nunley wrote in his 52-page order. “And Nexstar must put measures in place to maintain Tegna as an ongoing, economically viable, and active competitor.”

The injunction is Nexstar’s latest setback in the controversial deal championed by President Trump.

Bonta and the others are opposed to the merger, arguing it violates a 112-year-old U.S. antitrust law by knocking out a major competitor. The deal would give Irving, Texas-based Nexstar control of 265 television stations across the country, up from 164. And, in dozens of markets, including San Diego and Sacramento, Nexstar would own multiple TV network affiliates.

That duplication has raised concerns about staff consolidations and widespread newsroom layoffs.

“This is a critical win in our case,” Bonta said in a statement. “This merger is illegal, plain and simple. The federal government may have thrown in the towel, but we’ll keep fighting for consumers, for workers, for affordability and for our local news.”

Nexstar, in a statement, said that it will appeal the ruling, but that it has taken steps to comply with the court order.

“For nearly thirty years, Nexstar has provided free over-the-air access to all its broadcast stations — local news, weather, and community-focused programming alongside major network programming,” Nexstar said. “This procompetitive transaction will make local stations stronger and support continued investment in local journalism and fact-based news.”

Bonta and other state attorneys general sued to block the merger March 18. The state officials, all Democrats, alleged the union would create “a broadcast behemoth” with the “power to raise prices for television consumers” and diminish “local news and sports,” their lawsuit stated.

El Segundo-based DirecTV separately sued. It alleged the merger would dramatically tilt the pay-TV playing field, forcing DirecTV to pay dramatically higher fees for the rights to carry Nexstar-Tegna station programming, including local news and NFL football. Those costs, DirecTV said, would be passed along to its 10 million customers.

Trump had been agitating for the deal, writing in a February social media post: “GET THAT DEAL DONE!”

On March 19, the day after the lawsuits, the Trump administration approved the deal. The U.S. Justice Department terminated its antitrust review and the Federal Communications Commission’s Media Bureau authorized the transfer of Tegna’s station licenses to Nexstar.

Within an hour, Nexstar announced that it had finalized the purchase of its McLean, Va.-based rival.

Tegna was dissolved and its stockholders were paid out — raising questions about the fate of Tegna’s stations.

“Nexstar must not influence the management of the held-separate TEGNA business unit,” Nunley wrote. “Tegna personnel must maintain control over Tegna’s decisionmaking, including … negotiations [with pay-TV partners], newsroom personnel, operations and programming, product and service offerings, product development, advertisement sales, and personnel.”

Nexstar has complained about the unusual nature of blocking a transaction after-the-fact. But the plaintiffs noted that Nexstar had been aware of the state attorneys general concerns since at least March 10 — more than a week before DirecTV and the state regulators sued.

Colorado, Connecticut, Illinois, New York, North Carolina, Oregon and Virginia have joined California in the lawsuit.

The merger was not approved by the full FCC commission, prompting two U.S. senators — Ted Cruz (R-Texas) and Maria Cantwell (D-Wash.) — to question the FCC’s handling of the matter.

“This decision raises serious concerns about the Commission’s use of delegated authority in matters involving significant legal, policy, and economic consequences,” the two lawmakers wrote in a March 30 letter to the FCC. “The transaction is unprecedented in scale, resulting in the largest local broadcast television group in U.S. history.”

Nexstar has built itself into a colossus through a series of acquisitions, including its $6.2-billion takeover of Tribune Broadcasting, the longtime owner of KTLA, in 2019 — during the first Trump term.

Opponents have argued that Nexstar’s proposed purchase of Tegna gives Nexstar stations in 44 states covering 80% of the U.S. population — exceeding a 39% ownership cap set by Congress.

DirecTV has argued that the combination of the nation’s two largest television station groups could harm its pay-TV business by raising prices for consumers and potentially increasing programming blackouts.

The judge late last month combined the two lawsuits.

During a two-hour hearing earlier this month, Nexstar attorneys argued against the injunction, saying it had obtained the necessary federal approvals to take control of the Tegna stations.

“Setting aside the unusual FCC clearance process here, the Court does not find Defendants’ arguments persuasive,” Nunley wrote.

Nexstar contends the deal would strengthen TV station economics, allowing stations to bolster their news gathering and expand the number of newscasts. But DirecTV countered that in markets where Nexstar owns two stations, it relies on just one newsroom to program both channels.

“We commend the Court’s decision, which reinforces the coalition of states’ and our shared belief that unchecked station consolidation will force consumers to pay more for less by reducing the quality and variety of local news coverage,” DirecTV said in a statement.

Nexstar attorney Alexander Okuliar said the plaintiffs failed to demonstrate that the merger posed an immediate threat to the public.

Nunley, who was appointed by former President Obama, wrote in his order that the plaintiffs demonstrated they had a path to prevail at a trial due to the merits of their arguments.

Nexstar had asked the judge to require the plaintiffs to post a $150-million bond to compensate it for damages it would suffer from any delays in closing the deal.

But the judge denied that request, writing that Nexstar did not offer a “financial analysis or documentary evidence to support a bond in this amount” or any evidence that it would incur financial losses should the injunction be overturned.