In a highly unusual decision late on Tuesday, Feb. 9, the U.S. Supreme Court granted a stay of the Environmental Protection Agency’s (EPA) Clean Power Plan, the implications of which are numerous no matter your political posture.
By way of background, the EPA’s Clean Power Plan, a derivative of EPA’s Clean Air Act (CAA) authority, seeks to dramatically reduce the carbon emissions from power plants 32 percent below 2005 levels by 2030. As both an offshoot of President Obama’s executive muscle and an instrument employed to rally other industrialized nations around the global climate agreement in Paris last December, some may argue this plan was destined for unabashed cynicism and controversy. Nevertheless, the Clean Power Plan has garnered as much support as it has stone casting. Eighteen states, environmental groups and an array of power industry interests have filed briefs supporting the plan. Conversely, the U.S. Chamber of Commerce, more than two dozen states, coal companies and some electric utilities have argued that the EPA lacked necessary authority under the CAA to promulgate the plan.
Had it not been stayed, the plan would have required states to complete their emission reduction plans by September 2018, although they would not have been required to actually reduce carbon emissions until 2022 at the earliest. Ironically, those states who have already begun work on their compliance strategies, whether reluctantly or otherwise, may be the most affected by the Court’s ruling. Chief among their concerns is that the Court’s stay only perpetuates uncertainty and will “cause[s] harm to the power companies and others who are investing in clean generation technology.” Meanwhile, those who oppose the plan have espoused doubts about its legitimacy and declared dubious its preference of global carbon impact over middle class economics.
Aside from the aptly timed political angles, which are also reflected in the Court’s 5-4 ruling, the Court’s decision to stay implementation of the plan bares procedural nuance worthy of mention. The Court’s order reads as follows:
The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s ‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,’ 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicant’s petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
In order to successfully request a stay, a plaintiff “must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).
While it is unclear which or how these factors produced the resulting order, it is clear that aside from the scant applications for and opposition to the stay, meritorious arguments for and against the plan have not yet been fully briefed. This seemingly uncharacteristic and premature action on behalf of the Court forms the basis for a great deal of incredulous head-scratching among the many interests financially and/or morally vested in the outcome of the underlying action. More importantly, the Court’s ruling does not bode well for EPA, whose winning record on enforcing compliance with new regulations in the face of pending legal challenges is nothing short of astonishing.
According to some, this ruling could mark the beginning of a new trend in the Court’s desire to be complicit in the implementation of potentially ill-supported regulations, especially where those regulations are far-reaching and oftentimes practically irreversible once complied with. Proponents of this view need look no further than the EPA’s mercury rule, which recently was partially invalidated but not until after many power plants began complying. Taken one step further, the Court may have established that it is now more willing to run interference in areas that were historically relegated to agency deference. As a result — intended or not — the Court may find itself handling more stay applications as the EPA has shown no sign of displacing its quest for environmental change.