On February 9, 2016, in an historic and unprecedented decision, the U.S. Supreme Court blocked the U.S. Environmental Protection Agency (“EPA”) from implementing the Clean Power Plan (“CPP”) while the rule is challenged in lower courts. The decision is a victory for twenty-nine states and state agencies, along with several industry and trade groups (the “Petitioners”), who appealed the D.C. Circuit’s January 21, 2016 decision not to stay the CPP.
The Petitioners argued to the Supreme Court that the EPA does not have the Clean Air Act authority to implement the CPP, which they assert would reorganize the entire electric power sector of the U.S. economy. The petitioners persuaded the U.S. Supreme court that there was a reasonable probability that four justices would agree to hear the case, that there was a fair prospect that the majority of the court would find that the CPP was unlawful, and that irreparable harm would have resulted from the denial of the stay.
In their arguments, available here, the Petitioners focused on the claim that they were already being irreparably harmed because under the CPP states have begun spending significant time and resources to craft their state implementation plans required under the rule. While this argument was rejected by the D.C. Circuit, Justices Roberts, Scalia, Kennedy, Thomas, and Alito disagreed and granted a stay. Justices Breyer, Ginsburg, Kagan, and Sotomayor voted to uphold the D.C. Circuit’s decision.
In their opposition to the appeal, EPA argued that Petitioners’ claims were misguided because the D.C. Circuit was going to expedite its hearing on challenges to the CPP. In addition, the agency argued that the stay was more than temporary because it would result in tolling all relevant deadlines in the rule, even those that would come due many years after the resolution of the challenge. In response to the ruling, the White House expressed its disagreement with the Supreme Court’s decision and stated that “[e]ven while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.”
The CPP requires states to submit state implementation plans as early as 2016, with possible extensions to 2018, and curtail greenhouse gas emissions from existing power plants as early as 2022 to achieve carbon emissions reductions of 32 percent from 2005 levels by 2030.
While the CPP is blocked for now, the underlying legal challenge is scheduled to start with oral arguments to the D.C. Circuit in June 2016. Presumably, the party that loses there will petition for a writ of certiorari from the Supreme Court. Under the order issuing the stay, if the writ is not granted the stay will be automatically lifted. If the Supreme Court accepts review, a decision on the legality of the CPP may not be made until 2018. Because it is widely expected that the Supreme Court will be the final arbiter on the CPP, the stay decision raises questions about whether the Plan will withstand scrutiny and be deemed within EPA’s Clean Air Act authorities.
We will continue to monitor developments related to the Clean Power Plan litigation.