U.S. Supreme Court Stays Clean Power Plan Pending Judicial Review

On February 9, 2016, the U.S. Supreme Court granted a motion to stay the U.S. Environmental Protection Agency’s (“EPA”) implementation and enforcement of the Clean Power Plan (“CPP”) pending judicial review. The Court split 5-4 in granting the stay, with Justices Roberts, Kennedy, Alito, Thomas, and Scalia voting in favor of the stay.  Justices Ginsburg, Breyer, Sotomayor, and Kagan voted against.  The Court did not issue an analysis of its decision. The Court’s stay was the last order that Justice Antonin Scalia voted on before his death on February 13, 2016.

On January 21, 2016, the D.C. Circuit denied motions to stay the rule and granted expedited briefing with oral arguments scheduled for June 2, 2016.  Within a week of the decision, however, five (5) applications were filed with the Supreme Court requesting a stay of the CPP.  The challengers include twenty-nine states and various corporations and industry groups.

The CPP was originally announced by President Obama and EPA on August 3, 2015, aimed at lowering carbon emissions from U.S. power plants by thirty-two percent (32%) by 2030.  The CPP’s compliance period begins in 2022; however, the first deadline under is set for September 2016, when states are required to submit draft plans for compliance or request a 2-year extension.

The Supreme Court’s willingness to issue a stay while the case proceeds in the lower court is viewed as an early hint that the program could be met with skepticism.  The legal standard for granting a stay involves establishing a reasonable likelihood of success on the merits and irreparable harm to the movant.  Although the Supreme Court’s action initially signaled doubt for the long-term future of the CPP, the death of Justice Antonin Scalia has created a new sense of uncertainty as to the CPP’s future.

A copy of the Order granting stay can be found here.

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