State attorneys general said Wednesday that they are optimistic that they can win Supreme Court approval of a motion to halt the centerpiece of President Obama’s climate change agenda.
Chief Justice John Roberts could issue a decision on whether to stay the Clean Power Plan as soon as this week, although experts tracking the case say a decision likely will come in the next week or two.
“We acknowledge that an application for a stay at this stage isn’t typical,” West Virginia Attorney General Patrick Morrisey said on a call with reporters. “But what the EPA has done here is literally unprecedented, and they’re acting in a manner that’s clearly in violation of the rule of law and recent Supreme Court cases.”
Morrisey is leading a group of 29 states in opposing the Environmental Protection Agency’s Clean Power Plan, which requires states to cut greenhouse gas emissions a third by 2030. The states asked Roberts last week to answer their motion to stay the regulation, after the D.C. Circuit Court of Appeals denied their request. However, the appeals court expedited oral arguments to be heard in June. The states say a stay is necessary while the lower court rules on rescinding the plan.
While the states wait for the appeals court to rule, EPA is requiring them to begin the first phase of compliance with the plan, which could be expensive. States must begin submitting compliance plans to the EPA in September.
Many states are developing their plans, which can require making difficult economic decisions to close coal-fired power plants and ramp up new wind and solar projects.
Morrisey is optimistic, however. “The court may feel the need to come in and look at these cases closely and give these states the opportunity to have a hearing and a decision on the merits before these harms continue,” he said on the call.
He said there is valuable precedent in the action the Supreme Court took against EPA last year over its mercury and air pollutant rule for power plants. The high court said the EPA could not move forward with the rule without doing a cost impact analysis of complying. But by the time the court made its decision, the utility industry had already spent billions of dollars to comply with the regulations, making the decision irrelevant.
Experts say Roberts may want to avoid a repeat performance and stay the Clean Power Plan until the Court of Appeals rules.
The states argue that the EPA has no authority to impose such a rule, which will raise energy prices and be detrimental to the economy and the reliability of the electric grid.
Roberts gave the EPA a Thursday deadline to respond to the states’ motion. After that, Roberts can decide on his own, but probably will ask his fellow justices for their opinions. Experts say an answer could come as soon as Friday, but most likely a decision won’t come until the middle of the month.
