Supreme Court's Stay of the Clean Power Plan

Below is a release from the Unions for Jobs & Environmental Progress, of which the IBEW is a member:


On Tuesday evening (February 9), the Supreme Court issued an order to stay the final Clean Power Plan (CPP) rule.  The Court’s stay order was issued in response to five stay applications that had been filed by 26 states, coal producers, electric utilities, labor unions, and the manufacturing industry.  This order effectively overrules a unanimous decision that a three-judge panel of the D.C. Circuit issued last month on January 21 not to stay the CPP rule.

The Court’s order is an extraordinary and unprecedented action.  As acknowledged by the parties during the briefing of the stay applications, the Supreme Court had never before granted a request to stay a federal regulation before review by a federal appeals court.

The effect of the Supreme Court’s stay is to halt or freeze the implementation of the final rule.  This means, for example, that states will no longer have to submit initial plans to implement their applicable CPP reduction obligations by the September 2016 deadline.  Nor will states be required to submit their final implementation plans by the September 2018 deadline if the stay is not lifted by that date. 

The Court’s order did not specifically toll the deadlines imposed by the final CPP rule.  However, based prior precedent involving other federal environmental rules, it is likely that EPA will need to set entirely new deadlines for many of the CPP requirements once the court lifts the stay.  For example, it is probable that a two-year stay of the CPP rule would correspondingly extend by two years the current 2016 and 2018 deadlines for the state submittals of the implementation plans to 2018 and 2020, as well as extend the start of the CPP program from 2022 to 2024.  The specific dates of new deadlines would be ultimately established by EPA in accordance with the final orders from the Supreme Court and D.C. Circuit.

The stay will remain in place until the Supreme Court rules on any appeal of the D.C. Circuit decision on the merits.  This means that the stay will continue to apply throughout the litigation on the CPP.  A final court ruling on the CPP is not likely to occur before late 2017 or early 2018.

The Supreme Court’s decision to stay the CPP rule was a 5-4 decision, with the four liberal members of the Court dissenting.  Two key factors in granting the stay requests were the likelihood of success on the merits and irreparable harm.  The stay clearly indicates a high degree of initial judicial skepticism from at least five justices of the Court on legality of the CPP rule.  Furthermore, it is possible that one or more of the dissenting justices may also have concerns with the legality of the final CPP rule, but were unwilling to support a stay due to the extraordinary and unprecedented nature of stay action in this case – particularly given the D.C. Circuit expedited the schedule for the briefing and deciding of the case.