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Understanding the Stay

Understanding the Stay

Implications of the Supreme Court’s Stay of the Clean Power Plan

By Richard L. Revesz and Alexander Walker
April 27, 2016

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Filed under Climate Change and Energy Policy, Policy Briefs

Since the Supreme Court stayed EPA’s Clean Power Plan, which regulates carbon dioxide emissions from existing fossil fuel-fired power plants, opponents of the plan have been making unfounded assertions about the consequences of the stay. This policy brief aims to clarify the stay’s implications for EPA’s implementation work and the plan’s future compliance deadlines.

Although the Clean Power Plan’s requirements are not enforceable while the stay is in place, the agency is free to continue work on matters relating to the plan, such as the Federal Plan and Model Trading Rules it proposed last October in order to assist states with future compliance. Opponents who argue that EPA is prohibited from doing so confuse the consequences of a stay with those of an injunction. In fact, continuing this work would be consistent with the past actions of both Republican and Democratic administrations.

Additionally, the Supreme Court’s stay says nothing about delaying or “tolling” any of the Clean Power Plan’s deadlines, and it is premature for the plan’s opponents to claim that those deadlines will be tolled by the amount of time that the stay is in effect. Precedent suggests that the U.S. Court of Appeals for the D.C. Circuit is likely to determine whether and how long to toll the various compliance deadlines once the stay is lifted, taking into account the particular circumstances of the case, including current trends in the electric power sector.