February 27, 2016 Practice Points

Supreme Court Stays EPA's Clean Power Plan

This is the first time the Supreme Court has ever issued a stay on regulations before an initial review by a federal appeals court.

By Courtney Scobie – February 17, 2016

On February 9, 2016, the U.S. Supreme Court issued a stay on the implementation of the Clean Power Plan, the Environmental Protection Agency’s (EPA’s) new regulation designed to cut U.S. carbon emissions from power plants. The court said the plan could not move forward until all legal challenges had been heard. On January 21, 2016, the Court of Appeals for the D.C. Circuit denied the plaintiffs their request for a stay in implementing the regulations and has issued a briefing schedule for the parties. This is the first time the Supreme Court has ever issued a stay on regulations before an initial review by a federal appeals court.

Issued in August 2015, the plan is designed to cut U.S. carbon emissions by 32 percent by 2030 and was part of the U.S. pledge at the United Nations climate negotiations held in Paris in December 2015. Shortly after the EPA announced the Clean Power Plan, a group of states and industry groups, led by West Virginia, the nation’s leading coal producer, filed a lawsuit to halt the implementation of the plan, arguing that it exceeded the EPA’s mandate under the Clean Air Act and violated states’ rights to regulate electrical power.

The stay was issued along party lines, with the five conservative-leaning justices voting for the stay and the liberal-leaning justices voting against it. However, four days after the high court issued its stay, Justice Antonin Scalia passed away. Because the Court issued its stay prior to Justice Scalia’s death, it remains in place. However, there is now a 4–4 tie among the justices as to whether the EPA has the powers it proposes to exercise under the Clean Power Plan. The Court is expected to remain at just eight justices for quite some time, due to an impending standoff between President Obama and the Senate over Justice Scalia’s replacement. If that is the case, then the ultimate decision on the legality of the Clean Power Plan may lie with the D.C. Circuit for the time being, due to Supreme Court rules on ties. In the event of a tie, the Court upholds the decision of the lower court, but that decision does not apply outside the circuit and does not create precedent.

There is also the possibility that the regulation will not be implemented if a Republican wins the presidential election in November. Republicans have come out against the regulations, and the lawsuit in question was initiated by mostly Republican state attorneys general. A new Republican president could introduce legislation blocking the regulations. The legal challenges against the regulations will likely not be decided before President Obama leaves office. The Court’s stay, the legal challenges against the regulation, and the upcoming presidential election could affect the United States’ ability to carry out the agreements it made at the Paris climate talks in December 2015.

In the meantime, the D.C. Circuit granted the parties an expedited briefing schedule and set oral arguments on those briefs for June 2, 2016.

Keywords: Clean Power Plan, carbon emissions, Supreme Court, EPA


Courtney Scobie is with Ajamie LLP in Houston, Texas.

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