The Supreme Court on Oct. 16 turned down industry and state efforts to slap a stay on the U.S. Environmental Protection Agency’s new rules aimed at cutting carbon emissions at U.S. power plants burning fossil fuels. But the court left the door open for a second attempt pending a decision on the cases from the Court of Appeals for the D.C. Circuit. 

Under the final rule EPA released April 24, existing coal-fired power plants nationwide will have to either close by 2039 or use carbon capture and storage or other technologies to capture 90% of their emissions by 2032. New natural gas plants will have until 2035 to similarly cut their emissions through efficient design, carbon capture or a combination of both. (See EPA Power Plant Rules Squeeze Coal Plants; Existing Gas Plants Exempt.) 

The brief decision from Justice Brett Kavanaugh responded to a slate of eight cases against the EPA now before the D.C. Circuit, including two separate state challenges: one led by West Virginia, one led by Ohio. Suits also have been filed by the National Rural Electric Cooperative Association, the National Mining Association, NACCO Natural Resources Corp., the Midwest Ozone Group, Electric Generators for a Sensible Transition and the Edison Electric Institute. 

With Justice Neil Gorsuch concurring, Kavanaugh said that while the plaintiffs “have shown a strong likelihood of success on the merits as to at least some of their challenges” to the EPA rule, work on complying with the rule would not have to begin until June 2025. 

The plaintiffs “are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits,” Kavanaugh said. “Given that the D.C. Circuit is proceeding with dispatch, it should resolve the case it its current term.” 

Either the plaintiffs or EPA then could appeal to the Supreme Court, he said. 

The decision notes that Justice Clarence Thomas would have granted a stay, while Justice Samuel Alito “took no part in the consideration or decision of these applications.”  

The mixed decision got a quick reaction from Michelle Bloodworth, CEO of America’s Power, the coal industry’s trade association, who expressed disappointment that the court did not stay the rule, but also pointed to Kavanaugh’s belief that at least some of the state and industry arguments had merit.  

“We have long stated that … EPA’s carbon rule is an illegal overreach of the agency’s authority and would undermine the reliability of our nation’s electrical grid,” Bloodworth said. “By forcing the premature retirement of coal plants, the EPA would reduce needed sources of electricity at the same time electricity demand is exploding. Coal-based electricity is essential to ensuring the United States can develop and deploy artificial intelligence and not fall behind other nations like China.”