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.