With the surprising and sad news over the weekend of Justice Scalia's passing, many critical decisions before the Supreme Court suddenly got more interesting. This is certainly the case with the Clean Power Plan.
Last Week, in the first time in history the Court issued a stay of the effectiveness of the rule while the rule was still under challenge in the lower D.C. Circuit Court of Appeals. This was a highly unusual move both because the D.C. Circuit denied to grant the stay and because the Court never had taken the step previously. Many speculated that the Supreme Court's decision signaled the likelihood that the Clean Power Plan would not survive the legal challenge.
The stay was issued in a 5-4 decision along ideological lines. It seemed likely that the Court's ultimate decision as to the legality of the rule would be issued along similar ideological lines.
With Justice Scalia's passing, the Supreme Court is now split down the middle, with four liberal justices and four conservative justices.
What this ultimately means for the Clean Power Plan is somewhat uncertain, depending on the timing of the appeal. First, it appears unlikely the Court will revisit the stay that was issued last week. This comment appeared in the Atlantic Monthly:
"There is currently no reason to assume the Court will revisit the stay order," said Richard Lazarus an environmental-law professor at Harvard, "It is final as voted by the full Court at the time and is not subject to revisiting any more than any other rule by the Court before the Justice's passing."
Second, it appears more than likely that the case will be heard by the Supreme Court before a justice can be appointed to replace Justice Scalia. Based upon the political rhetoric that has ensued since news broke regarding Justice Scalia's passing, it appears highly unlikely that the Senate will confirm a new appointee by President Obama. Also, based on current timing, with a decision expected this fall by the D.C. Circuit and a decision next spring by the Supreme Court, it also appears very unlikely the new President will have a replacement Justice confirmed before the Court issues its decision.
I had commented in my previous post on the Supreme Court's decision to issue the stay that the D.C. Circuit's decision on the merits regarding the legality of the rule was merely advisory. This comment was based on the assumption the Supreme Court would hear any challenge an render the ultimate decision on the legality.
Assuming no new justice is appointed before the Supreme Court hears the challenge to the Clean Power Plan, the D.C. Circuit Court's decision would likely decide the fate of the ambitious Clean Power Plan. Assuming no new Supreme Court Justice is appointed, and assuming the Court does vote on the legality of the plan along ideological lines, this could mean the Court would be deadlocked in a 4-4 tie. If this were to occur, the D.C. Circuit Court decision on the merits would likely be the law of the land.
The current panel at the D.C. Circuit seems to favor upholding the Clean Power Plan. The case will be decided by a three judge panel. Justices Judith Rogers (a Clinton appointee) and Karen Henderson (a George H.W. Bush appointee) have been inclined to vote in favor of EPA's efforts to regulate greenhouse gases in prior Court decisions. The third Judge- Sri Srinivasan is an Obama Appointee.
With developments over the weekend, it appears the most significant piece of environmental regulation in decades may have new life.