In a surprising moves to legal experts, the Supreme Court yesterday in a 5-4 ruling stayed the implementation of the EPA’s Clean Power Plan (CPP) supporting greenhouse gas reductions at fossil fuel fired power plants. The move was surprising because the Supreme Court rarely involves itself in the determinations of whether or not a temporary stay of legal implications is warranted, largely leaving that to lower courts. The D.C. Circuit, two weeks ago, refused to grant a stay, meaning that the balance of harms against the likelihood of prevailing in the case did not weigh in favor of stopping the implementation of the rule.
What does all of this mean? Well, one could explain this very unusual action by the fact that the Clean Power Plan is itself very unusual. No case before, including litigation over the Affordable Care Act, has had so many state litigants. This state involvement was more likely to get Supreme Court attention than if the issue had not been something connected with state conflict.
The granting of the stay should also certainly be interpreted as a signal that the chance of the Supreme Court approving the CPP legality when that is finally litigated has dropped. The question is how much. If the Court granted the stay primarily in deference to the state interests, and didn’t see it as a delay in implementation, it may say little about the Court’s ultimate ruling. On the other hand, the stay could have been granted because five of the Supreme Court justices harbor doubts about the CPP’s legality in one way or another. Even if the CPP is eventually overturned, though, parts of it could still survive depending on the reasoning of the decision.
In the interim though, this decision will have some very important practical effects. States that have been objecting to the legality of the CPP may now stop their overt or covert efforts to craft a compliance plan until the end of litigation. On the other hand, if the CPP is ultimately approved, the timetable for compliance may not be any shorter. Analysts must really decide what they think the ultimate outcome of litigation will be before jettisoning efforts to understand and craft potential compliance plans.
If the CPP is overturned, the implications are enormous. While the movement away from GHG-heavy power production is underway and pushed by economics and technological innovation, the overturning of U.S. government authority to regulate how this occurs has important implications for the international agreements the U.S. has entered into, including the recent Paris Accords.
Also read Alice Kaswan's response to the Supreme Court's stay.
This blog is cross-posed on Fuel Fix.
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Victor Flatt | February 10, 2016
In a surprising moves to legal experts, the Supreme Court yesterday in a 5-4 ruling stayed the implementation of the EPA’s Clean Power Plan (CPP) supporting greenhouse gas reductions at fossil fuel fired power plants. The move was surprising because the Supreme Court rarely involves itself in the determinations of whether or not a temporary […]
Matthew Freeman | February 4, 2016
NEWS RELEASE: Analysis of EPA TMDL Data Documents Looming Failure by Chesapeake Bay States to Meet 2017 Pollution-Reduction Goals In Report & Letters to EPA and Governors, CPR Authors Call on Bay States to Step Up, and on EPA to Begin Enforcement Actions A new analysis from the Center for Progressive Reform concludes that the efforts […]
Daniel Farber | January 28, 2016
The value of some goods like wilderness today depends on their futures. Normally, economists imagine, equal experiences become less valuable as they recede further into the future. But some types of goods don’t have that kind of relationship with future experiences. They can become more valuable as they extend farther into to the future. Take […]
James Goodwin | January 20, 2016
Still just a few weeks into the new year, both chambers of Congress are making it clear that attacks on our system of regulatory safeguards will remain a top priority in 2016. The GOP-controlled House of Representatives has already passed—along partisan lines—two antiregulatory measures, and the Senate appears poised to follow suit with their own […]
Evan Isaacson | January 13, 2016
The water crisis in Flint, Michigan, is a tragic reminder of the hidden costs of our nation’s failing infrastructure. Whether through benign neglect or deliberate “starve the beast” cost-cutting measures, we are continually seeing the costly and sometimes terrible consequences of failing to meet our infrastructure financing needs. The American Society of Civil Engineers gave […]
Thomas McGarity | January 13, 2016
President Obama devoted his final state-of-the-union speech to highlighting his administration’s considerable accomplishments, and, more importantly, to articulating a surprisingly robust progressive vision for the future. And that vision properly included a large role for federal regulation. Noting that “reckless Wall Street,” not food stamp recipients, caused the financial meltdown of 2008-09, the President predicted, […]
| January 12, 2016
Last September, the Environmental Integrity Project put a spotlight on the dramatic increase in the number of industrial scale poultry houses being established on the Delmarva Peninsula. In its report, More Phosphorus, Less Monitoring, the organization found that more than 200 new chicken houses had been permitted on the peninsula since November 2014, including 67 […]
Daniel Farber | January 4, 2016
Here are seven of the most important developments affecting the environment. 2015 was a big year for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for. The Presidential Election. The election will have huge consequences for the environment. A Republican […]
Katie Tracy | December 22, 2015
As the year draws to a close and the New Year approaches, people all around the world will be contemplating what they can resolve to do better in 2016. This year, the U.S. Department of Labor (DOL) and U.S. Department of Justice (DOJ) seem to be celebrating the tradition as well. In a move akin […]