While last week’s Supreme Court-ordered stay of the Environmental Protection Agency’s Clean Power Plan is a blow to the rule, it doesn’t necessarily spell disaster, Nathan Richardson, a visiting fellow at Resources for the Future, said at an event Thursday. “It’s certainly not good news for the Clean Power Plan, but it’s far from fatal,” he said. “This is a long process and on balance my view is it’s still likely to be legal, but I think those chances dropped significantly.”
The Supreme Court in a 5-4 decision Tuesday granted a stay of the regulation. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted against the stay while Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts voted to approve the hold.
The stay will halt implementation of the regulation until the challenges to the rule itself are decided by the D.C. Circuit Court of Appeals and any Supreme Court appeals are concluded. It is speculated that this process will be complete sometime between mid-2017 and 2018.
A coalition of 26 states, 16 trade organizations, 61 power utilities, and others filed the application for the stay with 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.
For the stay to be granted, petitioners had to prove two arguments: that implementation of the rule would cause irreparable harm, and that the challenge is likely to succeed it its merits. However, the granting of the stay is not in itself a merits-based decision, Richardson explained. “It’s certainly still possible that it will survive. This is not a merits decision. This is not the court saying we’re going to reject the Clean Power Plan, but it does indicate some skepticism.”
Furthermore, Richardson said, even if the high court were ultimately to overturn the rule, it’s possible the justices might not overturn all of it. However, he said, if that is indeed the case, the part of the rule the court has an issue with would have to be significant. “It must be some important part of it, or there would be no hardship to the plaintiff,” he explained.
Looking forward, Richardson speculated that the stay could prove quite beneficial if the incoming president ends up being a Republican. None of the GOP candidates have supported the regulation, and the stay would make it easier for it to be dismissed. “It’s easier to just stop fighting [for the] plan in court than it is to uproot it and reject it,” he said.
It remains unclear at this point how Scalia’s recent death will feed into the Clean Power Plan court battle, but it is safe to speculate that if a successor is appointed in President Barack Obama’s term, or if a Democrat wins the upcoming election, it would likely be someone who would support the regulation. If the next justice is appointed by a Republican president, Kennedy is assumed to be the swing vote EPA will have to win over.
