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RJO Update: Environmental Law
March 2016

The U.S. Supreme Court Stays the Implementation of the EPA’s
Clean Power Plan Pending the Completion of All Legal Challenges

By Robert C. Goodman and Nicholas T. Niiro


On February 9, 2016, the U.S. Supreme Court granted a stay in the consolidated cases challenging the U.S. Environmental Protection Agency’s Clean Power Plan. This overrules a recent decision by the U.S. Court of Appeals for the District of Columbia Circuit denying the motion for a stay. The stay will be effective not only through the D.C. Circuit Court’s decision on the case but through any Supreme Court decision, as well.

In order to obtain a stay, Petitioners had to establish that they are likely to succeed on the merits, that they are likely to suffer irreparable harm in the absence of a stay, that the balance of equities tips in their favor, and that a stay is in the public interest. Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Industry Petitioners had argued that they would lose money if they were required to comply with the Clean Power Plan and it is later overturned. The EPA responded that states have three years to develop plans to implement the Clean Power Plan and that no changes are obligated until 2022.

The votes of the Supreme Court Justices fell along ideological lines, with Justices Breyer, Ginsburg, Kagan, and Sotomayor voting against the stay. Because the ruling for a stay considers the likelihood of success on the merits, the Supreme Court’s ruling on this motion is a bellwether of how it may decide on the merits. Justice Scalia’s death has created uncertainty as to how a decision on the merits will ultimately play out, however. The Justice selected to replace Scalia will likely tip the balance in a now evenly divided Court. And if the cases reaches the Supreme Court before a replacement for Justice Scalia is confirmed, an evenly divided Supreme Court would result in affirmance of the D.C. Circuit’s decision, whatever it is.

In its prior ruling on the motion, the D.C. Circuit Court agreed to expedite the appeals, with oral argument scheduled to begin on June 2, 2016, before Judges Karen LeCraft Henderson, Judith W. Rogers, and Sri Srinivasan. But the application of the stay through the Supreme Court’s ruling on the case has the potential to hold up the EPA’s implementation of the Clean Power Plan well beyond, as an ultimate decision by the Supreme Court could take years.

On August 3, 2015, President Obama and EPA announced the Clean Power Plan, which aims to reduce carbon emissions from power plants. Power plants are the largest source of greenhouse gas emissions in the United States. The Clean Power Plan was developed using the EPA’s authority under the Clean Air Act, 42 U.S.C. § 7401, et seq. The Clean Power Plan establishes targets for each state that would reduce power plant carbon dioxide emissions by approximately 32% below 2005 levels by 2030. The targets are different for each state because of each state’s unique energy mix and varying technological feasibilities, costs, and emissions reduction potentials. In California, for example, the EPA estimates that carbon dioxide emissions would be 54 million tons in 2020, without the Clean Power Plan, and aims to reduce this amount to 48 million tons by 2030. Compare this to neighboring Arizona, with projections of 40 million tons of carbon dioxide in 2020, without the Clean Power Plan, and a reduction goal of 30 million tons by 2030.

States can choose to use any number of methods to meet their targets, including joining multi-state or regional compacts to work collectively to reduce carbon emissions (e.g., the use of emissions trading). Because of California’s proactive greenhouse gas reduction policies – such as its carbon cap and trade program and promotion of renewable energy sources – it is anticipated to meet its reduction goals well in advance of the Clean Power Plan deadlines. Absent the stay, the states would have had to submit a final plan or a draft plan with a request for an extension of time by September 6, 2016, with the compliance period beginning on January 1, 2022 and a goal of achieving compliance by January 1, 2030.

If you have questions on how the Clean Power Plan will affect you, or need assistance with any other environmental matter, please contact Robert C. Goodman and Nicholas T. Niiro or another member of the Environmental Law Practice Group (all of whom are listed at http://www.rjo.com/environmental.html).

The content of this article is intended to provide a general guide to the subject matter, and is not a substitute for legal advice in specific circumstances.



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