By: Sandra Fadel
Twenty-eight states challenging the implementation of the Clean Power Plan (“CPP”) were handed a big win last week when the Supreme Court reversed a ruling by the D.C. Circuit Court of Appeals and issued a temporary stay blocking the implementation of the CPP until further review. [i] By issuing a stay, the Supreme Court put a stop to the EPA’s efforts to implement the act and spared operators of coal-powered fire plants the responsibility of complying with the CPP while the D.C. Circuit reviewed the related issue of whether the EPA had the requisite authority to implement the law.[ii]
The CPP, finalized in August 3, 2015, calls for existing power plants to slash their carbon emissions by 32 percent from 2005 levels by 2030.[iii] The plan provides for a number of options to cut carbon emissions including investment in renewable energy and a generational shifting away from coal-fired power.[iv]
States like West Virginia and Texas argued they would suffer irreparable harm by beginning the compliance process when they are likely to succeed in convincing the court that the CPP is illegal.[v] In their application for a stay, states and industry groups argued that compliance with the plan imposes per se irreversible sovereign and financial damages onto states to change their legislative and economic framework as early as September 2016.[vi] Given that the first hearing was scheduled for June 2016, petitioners argued that states would be forced to either comply with the act and lose some unrecoverable expenses or to forego compliance pending the court’s decision and risk the EPA imposing a federal plan on their constituents.[vii] The D.C. Circuit Court of Appeals rejected petitioners’ request for a stay, relying on the Supreme Court’s decision in Winter v. Natural Resources Defense Council which requires plaintiffs seeking a preliminary injunction to show that irreparable harm is “likely”.[viii] The D.C. Circuit asserted it will review the issue of CPP legality before a three-judge panel but that the case could be reheard by the full court of appeals before moving on to the Supreme Court.[ix]
The Supreme Court’s decision was brief and split along ideological lines. The five conservative Justices were convinced that states were already incurring irreparable harm by spending significant time and resources to implement the rule,[x] and the dissenting Justices were mentioned by name only (no dissenting opinion was provided). [xi] For its part, the EPA also urged the Supreme Court to act in its favor, arguing that “the harms of climate change that the rule is designed to mitigate are lasting and irreversible”.[xii] There is no case, the EPA added, in which a federal program has been put on hold without it ever having been reviewed by any court.[xiii]
The new order will delay the entire plan, including all deadlines that would stretch on into 2030, until after the D.C. Circuit completes its review and the Supreme Court confirms the ruling, if the case ends up there.[xiv] The unexpected granting of the stay has emboldened the challenging states and industry groups who now see this as a positive sign for the battle to come.[xv] Representatives of petitioners said they believe that the Justices will also likely agree that the EPA doesn’t have the requisite authority to enact the CPP, and will strike down portions of it as it had done twice in the last two terms with other Clean Air Act regulations.[xvi] More importantly, the grating of the stay means that the implementation of the CPP may be stalled until after President Obama leaves office next January[xvii] and any attempts to reformulate a plan of this caliber will have to be done under a new, and possibly a less sympathetic, administration
[i] Keith Goldberg, Supreme Court stays EPA’s Clean Power Plan, Law360 (Feb. 9, 2016, 6:25 PM), https://www.law360.com.proxy.wcl.american.edu/articles/756726/supreme-court-stays-epa-s-clean-power-plan.
[ii] Lyle Denniston, Carbon pollution controls put on hold, SCOTUS Blog (Feb. 9, 2016, 6:45 PM), https://www.scotusblog.com/2016/02/carbon-pollution-controls-put-on-hold/.
[iii] 80 Fed. Reg. 64661 (Oct. 23, 2015); Goldberg, supra note 1.
[iv] UCUSA, The Clean Power Plan: A Climate Game Changer, UCUSA.org, https://www.ucsusa.org/our-work/global-warming/reduce-emissions/what-is-the-clean-power-plan#.VsFQdvIrKhc
[v] Goldberg, supra note 1.
[vi] Pet’rs’ Application, at 39 – 44 (Jan, 26, 2016).
[viii] Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 22 (2008).
[ix] Denniston, supra note 2.
[x] Supreme Court Order, at 1 (Feb. 9, 2016).
[xii] Juan Carlos Rodriguez, Enviros, states urge High Court not to grant stay of CPP, Law360 (Feb. 4, 2016 9:25 PM), https://www.law360.com.proxy.wcl.american.edu/articles/755252/enviros-states-urge-high-court-not-to-grant-stay-of-cpp
[xiii] Rodriguez, supra note 12.
[xiv] Denniston, supra note 2.
[xv] Goldberg, supra note 1.
[xvi] Pet’rs’ Application, at 14 (Jan, 26, 2016).
[xvii] Denniston, supra note 2.