The Supreme Court has granted a stay of a final rule issued by the Environmental Protection Agency. The rule aims to reduce carbon dioxide emissions from power plants fueled by fossil sources. It has the dull title, “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” and is known more simply as the Clean Power Plan. Twenty-nine states and state agencies sued, claiming that the plan is illegal. The stay, by a vote of 5-to-4, halts implementation of the plan until such time as the legal challenges to it have been resolved.
The plan is now before the federal court of appeals for the District of Columbia, with a hearing scheduled for June 2. But whichever side loses in that court is almost certain to appeal to the Supreme Court. In the most likely scenario, the Justices will take the case in its 2016-17 term and decide it near the end of the term. President Obama thus would leave office before the Court decided whether his most important environmental initiative is lawful.
The Clean Power Plan would appear in danger, assuming that the ideological composition of the Supreme Court remains as it is now through the next term. Opponents of the plan make compelling arguments based on federalism. But their stronger claim is that the EPA lacked the necessary authorization from Congress for devising a policy that would regulate a significant portion of the economy.
Says Oklahoma Attorney General Scott Pruitt: “If the policymakers in Washington, D.C., along with the executive branch, determine that carbon dioxide is a hazardous air pollutant under [the Clean Air Act] and should be regulated, they should pass that law and give that authority to the EPA. Until that occurs, the EPA can’t simply make it up and act in the space of Congress.”
The Court doesn’t explain why stays are granted. Law professor Michael Greve thinks the Court wanted to avoid what happened last year in Michigan v. EPA. There the Court voided a similar rule but that didn’t stop the EPA. As the coalition of states said at the beginning of the stay application:
The stay application continued: “In the present case, EPA is seeking to similarly circumvent judicial review, but on an even larger scale and this time directly targeting the States . . .” The Court’s message to the EPA or rather its rebuke of same, is warranted: No more circumvention, not on our watch.
