By Keith Reid

In a highly unusual move, on Feb. 9 the US Supreme Court put a stay on the Obama administration/EPA’s Clean Power Plan. Previously discussed in THIS policy brief, the plan was designed to force a reduction in carbon emissions from power plants by 32% in 2030 compared to 2005 levels. It is one of the cornerstones of the Obama Administration’s often unilateral climate change platform. The court split along the usual progressive/conservative lines with Justice Kennedy siding with justices Thomas, Alito, Scalia and Roberts.

Some 27 states and 16 trade groups had sued EPA over the onerous requirements relatively the impact the program would have. The Obama administration considered the plan to be fair and flexible.
The court did not find against the plan per se, but blocked implementation until a federal appeals court hears the case later in the year.
The order:

The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.

As Jonathan Alder noted in his Washington Post coverage of the stay:

Looking back over the various stay applications, I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.

Reaction to the stay offered no surprises among the various special interests and factions.

  • “We are confident the courts will ultimately uphold the Clean Power Plan on its merits. The electricity sector has embarked on an unstoppable shift from its high-pollution, dirty-fueled past to a safer, cleaner-powered future, and the stay cannot reverse that trend. Nor can it dampen the overwhelming public support for action on climate change and clean energy.
    “Smart industry, financial, and governmental leaders will not count the Clean Power Plan out, and will keep moving to incorporate strategies and public policies leading toward a clean energy economy.”
    David Doniger, director of the climate and clean air program at the Natural Resources Defense Council
  • We disagree with the Supreme Court’s decision to stay the Clean Power Plan while litigation proceeds. The Clean Power Plan is based on a strong legal and technical foundation, gives States the time and flexibility they need to develop tailored, cost-effective plans to reduce their emissions, and will deliver better air quality, improved public health, clean energy investment and jobs across the country, and major progress in our efforts to confront the risks posed by climate change. We remain confident that we will prevail on the merits. Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need. At the same time, the Administration will continue to take aggressive steps to make forward progress to reduce carbon emissions.
    Whitehouse Press Secretary Josh Earnest
  • “The Court’s rare move confirms the legal vulnerability of EPA’s controversial Clean Power Plan. The stay protects consumers from higher electricity costs and states from being irreparably harmed by being forced to implement a rule that exceeds EPA’s statutory authority. We are confident that the D.C. Circuit will recognize the extreme extent to which this rule oversteps the bounds of EPA’s authority and step in to protect consumers by overturning this rule.”
    AFPM President Chet Thompson
  • “America’s future is a little brighter today because the Supreme Court has dealt a major blow to President Obama’s Clean Power Plan (CPP).
    “The supposed goal of the CPP was to reduce carbon dioxide emissions significantly below 2005 levels by shuttering the nation’s coal-fired power generation fleet and focusing on natural gas and renewable energy sources.
    “While replacing coal with renewable energy may invoke warm and fuzzy feelings, it would have had serious negative consequences for working families – who would wonder why the electricity bill keeps going up every month.
    “The United States produces only 2 percent of its total energy from wind and solar combined. We actually generate more energy from burning wood than wind and solar. The fact of the matter is, we are going to be dependent upon fossil fuels for a long time because they are the most affordable, abundant sources of energy we have. The Supreme Court delivered a decisive victory to middle-income Americans.”
    Isaac Orr, research fellow, energy and environment policy, The Heartland Institute