On Tuesday, February 9, 2016, the U.S. Supreme Court granted a stay of the Clean Power Plan based on applications filed by a broad coalition of states, the coal industry, the utility industry, and chambers of commerce. The parties filed the applications after the D.C. Circuit Court of Appeals denied similar motions.
This marks the first time that the Supreme Court has granted a stay request before a rule has been heard on its merits in lower courts. The stay will remain in place during proceedings in the D.C. Circuit and throughout any proceedings in the Supreme Court.
The stay is a major victory for the parties challenging the Clean Power Plan and has significant implications moving forward. First, with a stay now in place, states can wait for the outcome of the case before developing state plans to implement the Clean Power Plan. Even if the Rule survives litigation states should then be able to pick up where they left off in the planning process. Based on stays granted in other contexts, the court may further extend the applicable deadlines, and States would then have more time to prepare their initial plans after litigation comes to an end.
Second, the entire Court — not only the Chief Justice — weighed in on the stay. Therefore, the grant demonstrates that at least five justices have significant concerns about the Clean Power Plan’s legality. It also confirms that the Supreme Court almost certainly will grant a petition for certiorari filed by the petitioners if the D.C. Circuit upholds the Rule.
Concerns abound that the deferral or demise of the Clean Power Plan will compromise the credibility of U.S. commitment to the recent Paris climate agreement. With a key piece of President Obama’s greenhouse gas reduction plan in jeopardy, international perception of the United States as a leader in implementation may suffer, undermining the efforts of other member nations to overcome their own domestic political opposition to the treaty. If key players such as China and India cannot rally domestic support for meaningful implementation, the accord may go the way of the Kyoto Protocol, which floundered following U.S. withdrawal under President Bush. The White House has sought to counter this narrative, citing the recent extensions of renewable energy tax credits. “It is our estimation that the inclusion of those tax credits is going to have more impact over the short term than the Clean Power Plan,” said Eric Shultz, deputy press secretary to the White House.
The D.C. Circuit has established an expedited briefing schedule in the case with opening briefs due Friday, February 19 and final briefs due in mid-April. Oral argument has already been set for June 2. A decision is expected by early fall.
Copies of the Supreme Court’s orders on each of the stay applications are available here.