Supreme
Court puts the brakes on the EPA’s Clean Power Plan, By Jonathan
H. Adler
February 9 at 7:36 PM
Tuesday evening,
the U.S. Supreme Court granted
a stay,
halting implementation of the Environmental Protection Agency’s Clean
Power Plan pending the resolution of legal challenges to the program in court.
The CPP is arguably the Obama administration’s signature environmental
initiative, representing the EPA’s most ambitious effort to control greenhouse
gas emissions under the Clean Air Act. Five separate stay applications were
filed by more than two dozen states and numerous industry groups. Other
states, environmental groups and some energy companies opposed the stay. The
order reads as follows:
The
application for a stay submitted to The Chief Justice and by him referred to
the Court is granted. The Environmental Protection Agency’s “Carbon Pollution
Emission Guidelines for Existing Stationary Sources: Electric Utility
Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending
disposition of the applicants’ petitions for review in the United States Court
of Appeals for the District of Columbia Circuit and disposition of the
applicants’ petition for a writ of certiorari, if such writ is sought. 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. Justice
Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the
application.
The
Supreme Court’s decision comes as a surprise, as it is unusual for the high
court to block federal regulations, particularly where (as here) the D.C.
Circuit had denied a similar request. What could explain the move? One
possibility, suggested
by Michael Greve,
is that the court was concerned about a replay of Michigan
v. EPA,
in which the court invalidated another EPA rule to little practical effect. As
Greve noted, this point was stressed in the opening of the stay
application submitted
by 29 states and state agencies seeking a stay:
This
Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly
illustrates the need for a stay in this case. The day after this Court ruled in
Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule
regulating fossil fuel-fired power plants under Section 112 of the CAA, 42
U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision
was effectively a nullity.
Because
the rule had not been stayed during the years of litigation, EPA assured its
supporters that “the majority of power plants are already in compliance or well
on their way to compliance.” Then, in reliance on EPA’s representation that
most power plants had already fully complied, the D.C. Circuit responded to
this Court’s remand by declining to vacate the rule that this Court had
declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in
compliance from power plants before this Court could even review the rule […]
and then successfully used that unlawfully-mandated compliance to keep the rule
in place even after this Court declared that the agency had violated the law.
The
decision also suggests that a majority of the court has concerns about the
EPA’s authority to impose the CPP under the Clean Air Act. The CPP, whatever
its policy merits,
is based on a fairly aggressive reading of the relevant provisions of the Clean
Air Act, most notably Section 111.
Even some
liberal scholars, such
as Harvard’s Laurence Tribe, have raised questions about the EPA’s authority here.
(Tribe is also an attorney on one of
the stay applications filed
with the court.)
There are
serious legal arguments against specific elements of the CPP (such as the
consideration of potential emission reductions to be achieved “outside the
fence” of regulated facilities) as well as the position that Section 111
of the CAA allows the EPA to regulate greenhouse gases from power plants in the
first place. The latter concerns raise the stakes of the case and strengthen
the argument for a stay. This is because the question at issue is not merely
whether the EPA observed the relevant procedural niceties or properly exercised
its authority on the margin. Rather, the question is whether the EPA has the
authority to do this at all.
As a
practical matter, this stay means that the EPA may not continue to take any
actions to implement or enforce the CPP pending the resolution of the state and
industry challenge to the rule. That challenge is currently before the U.S.
Court of Appeals for the D.C. Circuit, which will hear oral arguments on June
2. In all likelihood, this means a D.C. Circuit decision will not be issued
until early fall, at the earliest. Given all that’s at stake, either en
banc review on the D.C. Circuit or a petition for certiorari will follow.
For those
interested, the Environmental Defense Fund has posted copies of the relevant
case documents here.
UPDATE: Some
additional thoughts. Looking back over the various stay applications
(linked above), I suspect that the EPA’s arguments against the stay were
undermined by the Agency’s own statements about the potentially revolutionary
nature of the CPP. In promoting the plan, the EPA repeatedly emphasized
that the CPP represented the most ambitious climate-related undertaking in the
agency’s history and crowed that the plan would lead to the complete
restructuring of the energy sector. Making these claims may have undermined the
EPA’s position, because it made it easier for the stay applicants to argue that
a stay was justified. Put another way, an unprecedented assertion of
regulatory authority may itself have justified an unprecedented exercise of the
Court’s jurisdiction to stay the agency’s action.
THIRD
UPDATE: I have a follow-up
post
that summarizes some of the legal and policy issues surrounding the CPP.
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