Last week the U.S. Supreme Court granted a stay in West Virginia et al. v. EPA et al, a lawsuit filed by dozens of states and industry groups challenging the constitutionality of the Environmental Protections Agency’s (EPA) Clean Power Plan. By granting a stay, the U.S. Supreme Court has prohibited the EPA from engaging in actions to implement or enforce the Clean Power Plan, pending the decision of the U.S. Court of Appeals for the District of Columbia Circuit, which currently has jurisdiction over the case. To obtain the stay, the opponents of the rule had to show that their case had a legitimate chance of succeeding based on the facts of the case and that irreparable harm would occur if the stay was not granted.

The Supreme Court’s decision shocked many, especially given the fact that a similar request was denied by the U.S. Court of Appeals for the District of Columbia Circuit in January. According to Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama Administration, the ruling suggests a “high degree of skepticism towards the Clean Power Plan…” The decision was unprecedented, as the Supreme Court had never before granted a request to halt a “generally applicable regulation” before review by a federal appeals court. While the Obama Administration has continued to defend the rule by arguing that it is based on a strong legal and technical foundation, opponents of the rule have applauded the ruling and are more confident than ever that the Clean Power Plan will not pass constitutional muster.

Key Details

• The court voted 5-4 to approve the application for a stay with Justice Ginsberg, Justice Breyer, Justice Sotomayor, and Justice Kagan voting in opposition
• Days before the ruling, the U.S. Justice Department, which was speaking on behalf of the EPA, had indicated that no other recent case could be found in which the Supreme Court granted a stay this early in the proceedings
• The U.S. Court of Appeals for the District of Columbia Circuit will hear oral arguments on June 2, with a decision not expected until sometime in the fall

Key Implications

• Though the ruling has temporarily nullified the EPA’s September deadline for the submission of state compliance plans or extension requests, the stay does not prohibit the states from developing compliance strategies. If this rule is ultimately upheld, it is unclear how the EPA will establish and/or implement modified compliance timelines
• Regardless of the decision by the U.S. Court of Appeals for the District of Columbia Circuit , the majority of legal scholars predict the issue of the constitutionality of the Clean Power Plan will eventually be decided by the U.S. Supreme Court

More Information

Utility Dive: Supreme Court puts Clean Power Plan on hold

SNL: Obama, McCarthy legacies at stake as ‘death knell’ sounds for Clean Power Plan

The Washington Post: Placing the Clean Power Plan in context

This report is part of the Regulatory Minute series. To view all featured Minutes, please click here.

Contributing Author: Eric Hanson