In the last post, we discussed the challenges facing the Clean Power Plan in 2016. Only six weeks into 2016, the CPP suffered a setback. In a significant development, the U.S. Supreme Court entered a stay of implementation of the EPA’s Clean Power Plan regulations until the court challenges are resolved. The Court’s 5-4 decision is an unprecedented action by the Supreme Court, which has never before stayed implementation of a regulation pending resolution of a legal challenge—a decision rendered all the more interesting by the subsequent passing of Justice Scalia, a member of the majority.
A group of state, companies, and business groups brought their request for a stay to the Supreme Court after the U.S. Court of Appeals for the District of Columbia denied the same request weeks earlier. The Court of Appeals will hear oral arguments in the case on June 2, 2016.
Beyond the legal community’s fascination with the Supreme Court’s extraordinary action, the stay is important for several reasons. At a basic level, this means that the states are not likely to take steps to reduce carbon emissions because the EPA cannot require them to do so. Under the regulations, states had to begin filing their compliance plans with the EPA in September of this year. Now, even if the regulations are ultimately upheld, implementation of any measures is likely to be delayed.
Perhaps more significant is the message this move sends about the future of the CPP. Although the Supreme Court has not ruled on the legality of the CPP, many commentators view this step as a clear signal of the Court’s misgivings regarding the Plan. Some have suggested that the Court may have been motivated by its desire to avoid the situation it faced recently with the mercury rule—where the regulations had been in effect for many years before the Court made its ruling—a fact that was used by the EPA to support its argument in that case.
In the global context, this delay of carbon reduction measures in the United States could undermine the agreement recently agreed to at the Paris summit, particularly in light of the United States’ prominent role in spearheading emissions reductions. The big question now: will the stay translate into the permanent fate of the Clean Power Plan?
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Further Reading and References:
Greg Stohr and Jennifer Dlouhy, Obama’s Clean-Power Plan Put on Hold by U.S. Supreme Court, Bloomberg, February 9, 2016, available at http://www.bloomberg.com/politics/articles/2016-02-09/obama-s-clean-power-plan-put-on-hold-by-u-s-supreme-court (last visited February 11, 2016).
Eric Wolff, Supreme Court blocks Clean Power Plan, Politico, February 10, 2016, available at http://www.politico.com/tipsheets/morning-energy/2016/02/pro-morning-energy-wolff-212640 (last visited February 11, 2016).