The Future of the Clean Power Plan: What the Unexpected Supreme Court Vacancy Means for the Rule

By Amelia Schlusser, Staff Attorney

This post is the first in a series exploring the legal challenges against the Clean Power Plan. 

The nine Justices of the Supreme Court in 2010. Justice
Scalia, pictured bottom row, second from left, passed
away on Saturday, leaving a vacancy on the Court.

On February 9, the U.S. Supreme Court issued a stay for the Clean Power Plan, EPA’s rule to regulate carbon dioxide emissions from existing power plants. Under the terms of the Supreme Court’s Order, the rule cannot go into effect until a final decision is reached in West Virginia v. EPA, which is currently scheduled for oral argument in the Court of Appeals for the D.C. Circuit on June 2, 2016.   

Many media outlets have been quick to label the Court’s stay as a major blow to the Clean Power Plan. However, the Court’s willingness to delay the rule’s implementation does not necessarily indicate how the Court will ultimately rule on the legality of the Clean Power Plan. Moreover, following the recent loss of Justice Scalia, it is possible that the Court may decline to review the D.C. Circuit’s decision on the rule entirely.

Background of the Legal Proceedings

On October 23, 2015, EPA’s "Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units," better known as the Clean Power Plan, was published in the Federal Register. That same day, a group of states led by West Virginia and Texas filed a petition for review of the rule in the Court of Appeals for the D.C. Circuit. The petitioners also filed a motion requesting that the D.C. Circuit stay the rule pending the outcome of the court’s review.

On January 21, 2016, the D.C. Circuit denied the petitioner’s request for a stay, holding that the petitioners had “not satisfied the stringent requirements for a stay pending judicial review.” A few days later, on January 26, the petitioners filed an application to stay the rule with the Supreme Court. The Court granted petitioner’s request for a stay on February 9. Under the Supreme Court’s Order, the Clean Power Plan is stayed pending the outcome of the D.C. Circuit’s review of the rule. If a writ of certiorari is sought following the issuance of the D.C. Circuit’s ruling, the stay on the Clean Power Plan will continue until the Supreme Court either denies review of the lower court’s ruling, or grants cert and enters its own judgment on the rule.

Petitioners Arguments for Putting a Hold on the Clean Power Plan

For the Supreme Court to grant a stay of an agency action, petitioners normally must show that there is 1) a “reasonable probability” that four Justices will agree to review the lower court’s decision; 2) a “fair prospect” that a majority of the Justices would vote to reverse the lower court’s decision; and 3) if the Court denies a stay, the petitioners will likely suffer “irreparable harm.”

The petitioners in West Virginia v. EPA asserted that they met the first two requirements for a stay because the Clean Power Plan has a wide-ranging impact and because, in the petitioner’s view, the rule is unlawful. These arguments will be explored further through later posts in this series.

Petitioners further asserted that absent a stay they would face “massive and immediate impacts” under the Clean Power Plan. They argued that many coal-fired power plants would be required to close under the rule, and that these plant retirements would lead to closures of coal mines, which would result in job losses in poor, rural communities.

They further argued that the Clean Power Plan would incentivize billions of dollars of investment in renewable energy, and that “[s]uch a dramatic reallocation of capital resources” is not within the public interest. According to the petitioner’s application to the Court, “a stay would preserve the status quo.”

The Clean Power Plan’s Future in Light of the Supreme Court’s Stay and the Recent Loss of Justice Scalia

In early February, five of the Court’s nine Justices ultimately agreed with the Petitioners’ arguments and granted a stay of the Clean Power Plan. Justices Scalia, Roberts, Thomas, Alito, and Kennedy all voted in favor of issuing a stay, while Justices Ginsberg, Breyer, Sotomayor, and Kagan all voted against the stay.

This division among the Justices is not surprising. The Court’s four liberal Justices voted against staying the federal emissions regulation, while the Court’s four conservative Justices voted to stay the rule pending its judicial review.

In the days following the Court’s stay, it seemed that the legality of the Clean Power Plan would almost certainly be decided by the Supreme Court. However, following the death of Justice Scalia on February 13, this outcome does not seem quite as certain. Under Court rules, four of the nine Justices must agree to hear a case. If the D.C. Circuit invalidates the Clean Power Plan, the Court’s four liberal Justices are likely to vote to hear the case. However, if the lower court upholds the rule, it is uncertain whether the Court’s four remaining Justices will all vote to hear the case in the absence of Justice Scalia.

Justices Roberts, Thomas, and Alito would almost certainly vote to review a D.C. Circuit decision that upholds the Clean Power Plan. However, depending on the D.C. Circuit’s decision, Justice Kennedy may ultimately decide to let the lower court’s ruling stand. Given that Justice Kennedy tends to be the Court’s lone swing voter on politically charged disputes such as climate change, this outcome is not inconceivable.

Justice Scalia’s passing presents a number of questions regarding the Court’s potential review of the Clean Power Plan. It is possible that a new Justice will be confirmed to the Court before the D.C. Circuit issues a decision in West Virginia v. EPA, or before the Court hears oral arguments for the case if four Justices ultimately do vote to review the lower court’s ruling. If President Obama succeeds in appointing a new Justice to the Court during the remainder of his term, the new Justice will presumably support upholding the rule. This is also a likely outcome if the nation elects a Democratic president in November. However, if the incoming president is a Republican, it is possible that the new Justice will share Justice Scalia’s views on the legality of the Clean Power Plan.

While the future make-up of the Court is almost impossible to predict at this point in time, we can make a few general inferences regarding the direction the Court might take. First, if a new Justice is not appointed before the case reaches the Supreme Court, the D.C. Circuit’s ruling will likely determine the fate of the rule (when the Court issues a 4-4 decision, the lower court’s ruling remains in effect). Second,

if a liberal Justice is appointed to the Court, the Clean Power Plan will almost certainly be upheld. Finally, if a conservative Justice is appointed to the Court, the fate of the rule will almost certainly be determined by Justice Kennedy.

Next week’s post will describe the legal arguments raised in West Virginia v. EPA, and discuss EPA’s authority to regulate greenhouse gas emissions from existing sources under the Clean Air Act.  Later posts will explore recent Supreme Court decisions involving EPA’s efforts to regulate carbon dioxide emissions under the statute.