Yesterday, the Supreme Court issued a stay of the Obama Administration’s Clean Power Plan (CPP) after the lower Court had denied to grant such relief. Currently, the legal challenge to the validity of the rule is pending before the D.C. Circuit Court of Appeals. The Supreme Court had never previously issued a stay of a rule in which the legal challenge was pending before the D.C. Circuit.
In a surprising move, the Supreme Court made the stay effective all the way until the Supreme Court weighs in on the legality of the rule. This makes the D.C. Circuit case little more than a preview of the arguments since the rule cannot be implemented until the Supreme Court renders its decision.
The stay was sought by 29 different states and state agencies, as well as various business groups. The decision to grant the stay was made in a 5-4 decision along ideological lines.
Those seeking a stay must demonstrate that there would be irreparable harm if they were forced to comply while the legal challenges were pending. The states seeking the stay argued that, despite the fact the most significant compliance deadlines were a couple years away, they were spending significant resources now trying to determine how to comply with the rule.
All deadlines imposed by the rule are on hold until the Supreme Court rules on the plan’s legality. The first deadline was September 6, 2016, when States were required to either submit their implementation plans or request a two-year extension.
The Clean Power Plan is an ambitious effort to change the fundamental aspects the energy sector in the United States. It requires power plans to reduce carbon emissions by 32% from 2005 levels by 2030. The States are called upon to enact individual plans for how they will achieve the required reductions. Under the rule, State must submit their plans (referred to as State Implementation Plans or SIPs) by 2018 and start achieving reductions by 2022.
Not only does the stay prevent implementation of the rule until two appeals are concluded (one before the D.C. Circuit and a second before the Supreme Court), it also signals that a majority of the justices question the legality of the rule. Those challenging the legality of the rule must demonstrate that they have a substantial likelihood of success in proving the rule is illegal.
The crux of the CPP is based upon EPA’s authority under Section 111 of the Clean Air Act. At issue is whether that provision only provides EPA with authority to regulate technology at the powerplants themselves (i.e. within the "fence line") or whether EPA can set emissions standards across the entire energy sector thereby changing the mix of production to natural gas and renewables. Despite the fact the Court issued the stay order without an explanation as to its findings, its decision to issue the stay signals the Supreme Court may agree EPA has exceeded its authority.