The Obama Administration finalized the “Clean Power Plan” rule for existing coal-fired electric generating plants on October 23, 2015. 80 FR 64662 (Oct. 23, 2015). The rule creates a CO2 budget for states that cannot be met by existing coal-fired units. Instead, the rule depends on widespread “trading” by which states can meet their budgets only if coal-fired units are not run and power is generated by gas or renewable sources.
A coalition of states and industry have challenged the rule in the D.C. Circuit Court of Appeals (the Clean Air Act provides for direct review of rules in that appeals court). They also sought to “stay” the effect of the rule pending their challenge. By order of January 21, 2015, the Circuit Court denied the stay, saying only that the “Petitioners have not satisfied stringent requirements for a stay pending court review.” The test for a stay generally requires the applicant to show it is likely to prevail on the merits of its claim and that it will suffer irreparable harm absent the stay. The irreparable harm showing was complicated because the Clean Power Plan rule gives states up to two years to devise a compliance strategy—a delay EPA argued prevented any immediate harm.
Almost immediately after the D.C. Circuit denied their stay request, the applicant coalition, led by Elbert Lin of the West Virginia Attorney General’s Office, sought a stay from the U.S. Supreme Court. They argued that the rule is having immediate effect on states and industry, both of which are making decisions now about the future commitment of resources. By order of February 9, and without any adornment, the Court granted the stay with the following language:
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 applicant’s 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 Bryer, Justice Sotomayor, and Justice Kagan would deny the application.
Jackson Kelly represents the West Virginia Coal Association in the challenge to the Clean Power Plan.
This article was authored by Robert G. McLusky, Jackson Kelly, PLLC.