|The Supreme Court of the United States.|
EPA's final Clean Power Plan rule establishes emission guidelines for states to follow in developing plans to reduce greenhouse gas emissions from existing fossil fuel-fired electric generating units. Developed by EPA pursuant to Clean Air Act Section 111(d), the regulation prescribes carbon reductions for states.
While state-level emissions reductions are federally prescribed, the rule places states in the role of developing their own compliance plans for how to reach the required emissions reductions. The rule was published in the Federal Register on October 23, 2015, as Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units, 80 Fed. Reg. 64,662. It gave states until September 6, 2016 to file a final plan
If implemented, the EPA says the Clean Power Plan will reduce carbon emissions from power plants by 32% below 2005 levels, or about 870 million short tons. EPA estimates the regulation could yield public health and climate benefits worth $54 billion in 2030 alone. As states cut back on using carbon-intensive fuels such as coal and oil, EPA projects that renewable energy will grow, with utility-scale wind and solar expected to double by 2030 under the Clean Power Plan compared to 2013 levels.
But numerous lawsuits have been filed challenging the rule, along with petitions to stay or freeze its effectiveness pending judicial review. Last month, the D.C. Circuit Court of Appeals denied petitions for stay from parties including states, utilities and trade groups such as the American Coalition for Clean Coal Electricity.
Parties then filed petitions for stay to the U.S. Supreme Court. Under a 2012 Supreme Court precedent, Maryland v. King, a party seeking a stay must demonstrate (1) a "reasonable probability" that the Supreme Court will grant certiorari or agree to hear the case, (2) a "fair prospect" that the Court will reverse the decision below, and (3) a "likelihood that irreparable harm [will] result from the denial of a stay." This is a relatively high burden.
Today a majority of the U.S. Supreme Court agreed to stay the Clean Power Plan rule, by order entered in the West Virginia, et al. v. EPA, et al. case and others consolidated into the West Virginia case. In the Court's words:
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 applicant’s petition for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicant’s 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.The order notes that Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the request to freeze the rule's effect. This note reveals a 5-4 decision to issue the stay, with Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Thomas and Justice Alito in the majority as supporting the stay.
With the Clean Power Plan's effect stayed, litigation over the rule will now proceed in the U.S. Court of Appeals for the District of Columbia Circuit. The 27 states participating in challenges to the rule are likely cheering. Those include Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin and Wyoming. Meanwhile, the 18 states who filed in support of the EPA, along with those states who have started preparing compliance plans for the regulation, now find themselves on less certain footing. So too do electric power generators, and others interested in energy markets. If controversy persists, whatever decision the circuit court issues is likely to be appealed to the Supreme Court.