In what is undoubtedly one of the most significant blows to the U.S. Environmental Protection Agency (EPA) in recent history, the U.S. Supreme Court by a 5-4 vote ordered a stay on EPA from implementing its Clean Power Plan on Tuesday evening. The recently finalized regulation – the centerpiece of President Obama’s climate policy initiative and the U.S.’s commitment to the recent Paris climate agreement – would reduce domestic carbon dioxide emissions by 32 percent from 2005 levels by 2030.
Soon after the rule was published in the Federal Register on October 23, 2015, some 27 states and several private-sector interests filed 15 separate lawsuits against EPA, calling the agency’s new regulation “an unprecedented power grab.” On January 21, a three-judge panel of the Court of Appeals for the District of Columbia Circuit unanimously denied the petitioners’ request for a stay while the regulation is litigated. The petitioners sought a stay because states and utilities alike will need to spend billions of dollars in order to comply with a regulation that may ultimately be overturned. Just last term, the Supreme Court ruled that EPA illegally promulgated the Mercury and Air Toxics Standards (MATS) rule, but the ruling had a limited impact since states and utilities had already made the changes necessary for complying with the regulation.
Twenty-nine states appealed the Circuit Court decision to deny a stay to Chief Justice John Roberts, who typically handles emergency legal matters from the Circuit Court. The chief could have ordered a stay on his own or, as in this case, turn the decision over to the entire Supreme Court. Oral arguments are scheduled to take place before a panel of the Court of Appeals on June 2.
To be sure, this is an enormous turn of events. Donald Verrilli, currently the Solicitor General of the United States and EPA’s representative in the forthcoming litigation wrote in a brief the states’ request for a stay before the Supreme Court was “extraordinary and unprecedented.” Neither Verrilli nor the states could identify a single regulation where the Supreme Court imposed a stay before the regulation was litigated in the court of appeals. While the legality of the Clean Power Plan will still be considered by the DC Circuit Court and, likely, the Supreme Court, many court observers will inevitably view this stay as an indication that the petitioners have made a strong argument against the regulation.
More to come.