Abby L. Harvey
GHG Daily
2/10/2016
The Supreme Court on Tuesday evening in a 5-4 decision granted a stay of the Environmental Protection Agency’s carbon emissions standards for existing coal-fired power plants, marking a significant blow to the Obama administration’s climate agenda.
Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elana Kagan voted against the stay while Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito and Chief Justice John Roberts voted to approve the stay.
The stay will halt implementation of the regulation, dubbed the Clean Power Plan, until the matter has been decided in the D.C. Circuit Court of Appeals and any Supreme Court appeals are concluded.
A coalition of 26 states, 16 trade organizations, 61 power utilities, and others filed an application for the stay with Chief Justice John Roberts days after the D.C. Circuit Court of Appeals denied their petition to put a hold on the rule, which requires states to develop action plans to meet federally set, state-specific carbon emissions reduction goals.
Petitioners argued that states might be forced to spend billions of dollars to come into compliance with the rule before it is judged by the Supreme Court. If the court were to overturn the rule, the states would be unable to recover those funds. The D.C. Circuit Court of Appeals found that the petitioners did not meet the requirements needed to grant a stay, but did approve an expedited schedule for the legal challenge to the rule, with oral arguments beginning June 2.
“Only a stay from this Court now can ensure that EPA will not, in another year or two, once more boast that it has rendered this Court’s review practically meaningless. Absent a stay, the Power Plan will—throughout the lifespan of this litigation—force massive, irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power,” the stay request says.
The regulation was finalized in August. As soon as it was published in the Federal Register, a measure deemed by the Clean Air Act to be the starting pistol for legal challenges, states, industry groups, fossil energy companies, and utilities filed into the D.C. Circuit in mass quantities.
Response to the Supreme Court order was immediate from both sides of the debate. “The Supreme Court’s stay of this rule and the D.C. Circuit’s order to hear the case quickly will ensure that America will not be forced to make costly and irreversible implementation decisions based upon an unprecedented regulation until judicial review is complete,” wrote U.S. Chamber of Commerce President Thomas Donohue in a Tuesday evening statement. The Chamber is party to the stay application and the attached legal challenge in the D.C. Circuit.
West Virginia Attorney General Patrick Morrisey, who initiated the Supreme Court stay application, similarly praised the decision. “Make no mistake – this is a great victory for West Virginia,” Morrisey said in a statement. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”
When filing the stay application with the high court Morrisey admitted that the move was atypical. “While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” Attorney General Morrisey said at the time. “Real people are hurting in West Virginia and it’s my job to fight for them.”
The loss is a blow, the EPA said in a statement, but the agency remains undeterred in its efforts to address carbon pollution. “We’re disappointed the rule has been stayed, but you can’t stay climate change and you can’t stay climate action. Millions of people are demanding we confront the risks posed by climate change. And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution,” the agency said.
The White House released a statement suggesting that the EPA will continue to work with states choosing to continue plan development.
The rule’s supporters were just as outspoken about the announcement. “We are confident the courts will ultimately uphold the Clean Power Plan on its merits. The electricity sector has embarked on an unstoppable shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future, and the stay cannot reverse that trend. Nor can it dampen the overwhelming public support for action on climate change and clean energy,” David Doniger, director of the climate and clean air program at the Natural Resources Defense Council, said in a statement. “Smart industry, financial, and governmental leaders will not count the Clean Power Plan out, and will keep moving to incorporate strategies and public policies leading toward a clean energy economy.”
“Today’s court decision is unfortunate but does not reflect a decision on the merits. The D.C. Circuit Court will carry out a careful and expeditious review of the merits over the next few months. The Clean Power Plan has a firm anchor in our nation’s clean air laws and a strong scientific record, and we look forward to presenting our case on the merits in the courts,” said Vickie Patton, general counsel for Environmental Defense Fund, which is a party to the case.
