By Rich Heidorn Jr.
WASHINGTON — The Supreme Court Tuesday blocked EPA from implementing the Clean Power Plan pending legal challenges.
The court ruled 5-4 in favor of a stay, with the court’s liberal wing in the minority.
The court’s one-page order (15A773, et al.), which surprised many observers, means that states won’t have to submit initial compliance plans or extension requests in September, as required by the final EPA rule released last summer.
It also suggests EPA will face a skeptical, if not hostile, court majority if the rule survives challenges now pending before the D.C. Circuit Court of Appeals. Oral arguments before the D.C. Circuit are scheduled for June 2.
A three-judge panel of the D.C. Circuit rejected a stay request last month, ruling that opponents had not proven they had a good chance to prevail in the challenge and that allowing EPA to implement the rule while the case was litigated would result in irreparable harm. (See DC Circuit Rejects Stay on Clean Power Plan.)
States’ Arguments
Twenty-nine states, led by West Virginia, Texas and Oklahoma, asked the Supreme Court to reconsider, saying that EPA had overreached its authority under the Clean Air Act and that the states would suffer “immense sovereign and financial harms as a direct result of the plan, on a scale exceeding any environmental regulations the states have ever faced.”
“In response to the [CPP], the states need to design and enact transformative legislative and regulatory changes, to give their state regulators the authority both to require generation shifting and to react to the rate and reliability impacts of such shifting. Specifically, as several states explained in declarations before the D.C. Circuit, compliance with the plan will require new legislation in the next one to two years to ensure that there is sufficient growth in their domestic natural gas, wind, and solar power sectors to meet the [CPP]’s reductions in coal-fired generation,” the states said in a brief filed Jan 26.
“The sources of energy that EPA assumes will replace coal take years to plan, develop, approve, and then build. Indeed, EPA admitted in the plan that at least some states will need to enact legislation to comply. In addition, states have to revise numerous regulations to ensure that state public utility commissions can respond to and mitigate the plan’s energy price and reliability impacts,” the brief continued.
“These massive legislative and regulatory changes, which are irreparable harms in and of themselves, will also undermine the states’ ability to maintain or achieve their own sovereign priorities. Requiring state regulators to design, mandate and then implement federally mandated ‘generation shifting’ will displace contrary policies that many states have carefully crafted over decades. Once made, many changes will be ‘impossible’ to reverse.”
In a brief on behalf of EPA, Solicitor General Donald Verrilli called stay requests “extraordinary and unprecedented” and said the court had never before “granted a stay of a generally applicable regulation pending initial judicial review in the court of appeals.”
The government argued that states could obtain extensions on filing compliance plans until 2018 and that the first deadlines would not come until 2022. The EPA rule seeks to cut the power sector’s carbon emissions by 32% by 2030, compared with 2005 levels.
The Supreme Court stayed the rule pending a ruling by the D.C. Circuit and the court’s disposition of a petition for a writ of certiorari after that. “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.”
Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor opposed the stay.
Opponents Rejoice
West Virginia Attorney General Patrick Morrisey called the stay “a great victory for West Virginia.”
“We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”
Mike Duncan, CEO of the American Coalition for Clean Coal Electricity, called the stay “a signal the Supreme Court has serious concerns with the” EPA rule.
Without the stay, said Jeffrey Connor, interim CEO of the National Rural Electric Cooperative Association, “co-ops would have been forced to take costly and irreversible steps to comply with the rule, which is a huge overreach of EPA’s legal authority. The Clean Power Plan is a direct threat to co-ops’ ability to provide affordable and reliable electricity to their member consumers and should be erased from the books.”
Enviros Take the Long View
The Natural Resources Defense Council professed confidence that the rule will ultimately be upheld. “The electricity sector has embarked on an unstoppable shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future, and the stay cannot reverse that trend,” said David Doniger, director of NRDC’s climate and clean air program.
“Nor can it dampen the overwhelming public support for action on climate change and clean energy. Smart industry, financial and governmental leaders will not count the Clean Power Plan out and will keep moving to incorporate strategies and public policies leading toward a clean energy economy.”
Tom Kiernan, CEO of the American Wind Energy Association, expressed disappointment, saying the stay “may signal eventual delays in reducing both the carbon pollution that is causing climate change and getting proven, clean, and affordable wind energy to more Americans.”
Legal Issues
The Supreme Court ruled in 2007 that EPA had authority to regulate carbon dioxide. At issue is how the agency defined the “best system of emission reduction (BSER),” the standard set in Section 111(d) of the Clean Air Act. Opponents contend that the Clean Power Plan is based on a novel — and improper — interpretation.
The opponents also contend that EPA cannot regulate CO2 under 111(d) because it is also regulated under Section 112 through the Mercury and Air Toxics Standards. (See Legal Debate over Clean Power Plan Takes Center Stage.)
