The Obama Administration, through the Environmental Protection Agency (“EPA”), announced the implementation of the Clean Power Plan (“CPP”) in August of 2015. The CPP has the stated purpose of “establishing guidelines for states to follow in developing plans to reduce greenhouse gas emissions from fossil fuel-fired electric generating units,” or, in layman’s terms, to cut carbon emissions from power plants. At that time, fifteen coal-reliant states filed for an emergency stay of the CPP with the U.S. Court of Appeals for the District of Columbia Circuit. The court dismissed the petition on September 9, 2015, stating that it was untimely because the final regulation had not yet been properly published. On January 21, 2016, the D. C. Circuit Court denied the requested stay on its merits. On January 26, 2016, officials of twenty-nine states appealed to the U.S. Supreme Court, requesting a stay pending the resolution of litigation regarding the regulation. The appellants argued that the CPP provided the EPA with too much power, which would result in the EPA pushing for the use of wind and solar at the expense of older energy-generating plants that burn coal or oil.

In a 5-4 ruling on February 9, 2016, the Supreme Court ordered the Obama Administration to stay any efforts to implement the CPP until the completion of all legal challenges to the same. This stay will remain in place while courts consider more than 30 lawsuits pertinent to the CPP. While the Supreme Court stay of the CPP is not final, it placed the Obama administration’s environmental agenda in peril. Following the ruling, the White House expressed its disappointment as follows:

We disagree with the Supreme Court’s decision to stay the Clean Power Plan while litigation proceeds. The Clean Power Plan is based on a strong legal and technical foundation, gives states the time and flexibility they need to develop tailored, cost-effective plans to reduce their emissions, and will deliver better air quality, improved public health, clean energy investment and jobs across the country, and major progress in our efforts to confront the risks posed by climate change.

Even if the rule is eventually upheld, the stay will adversely affect compliance timelines set forth for states and utilities. The CPP requires states to submit implementation plans as early as this year (with possible extensions to 2018) in order to reduce greenhouse gas emissions from existing power plants by 2022. This would result in carbon emissions reductions of 32 percent from 2005 levels by 2030.

The EPA enacted the CPP under a section of the Clean Air Act that has been rarely used since it was passed in 1970. Justice Antonin Scalia, writing for the majority, noted that “[w]hen an agency claims to discover in a long-extant statute an unheralded power to regulate a significant portion of the American economy, we typically greet its announcement with a measure of skepticism.” The stay indicated that the conservative majority of the Court foresaw a reasonably high likelihood that the challengers to the CPP would probably win their case, and that the denial of the stay would result in irreparable voluntarily harm.

However, the recent death of Justice Scalia puts the CPP in a much more stable position than it would have been otherwise. The sitting panel of the D.C. District Court, which will decide the challenge, is composed of a majority of judges appointed by Democratic Presidents that would likely uphold the regulations. A majority of the Supreme Court would then be needed to overturn the D.C. Circuit Court’s decision. This seems unlikely, as the Court as it stands now is deadlocked at 4-4. If the Obama Administration is able to fill the vacancy on the Court or if a Democratic successor to President Obama is elected, the Court would likely uphold the CPP by a 5-4 vote. On March 3, 2016, Chief Justice John Roberts refused a similar request by 20 states to stay an EPA regulation limiting mercury and other toxins from power plants as it undergoes a lower court challenge, a move that some pundits claim evidences a shift of power on the Court.

In any regard, the EPA plans on pushing forward with the implementation of the CPP. At a recent conference in Houston, EPA Administrator Gina McCarthy expressed confidence that the CPP would survive these on-going legal challenges, and she pledged that the EPA would, in the meantime, continue to help states that wanted to continue to implement the CPP by choice. In her words, “[t]he stay doesn’t preclude the EPA from continuing to make progress on climate change. Are we going to respect the decision of the Supreme Court? You bet we are. But that doesn’t mean we won’t continue to support any state that voluntarily wants to move forward.”