Institute for Policy Integrity

Clean Power Plan — Legal Landscape Update

March 2016

Supreme Court Analysis

The nomination of Judge Merrick Garland to the Supreme Court may not have major ramifications for the future of the Clean Power Plan, given the uncertainty over the confirmation process. If Judge Garland is confirmed, the high court might be more likely to uphold the plan rather than rule in a 4-4 tie (in which case the D.C. Circuit’s upcoming ruling would stand). The odds of the plan surviving Supreme Court review looked much shakier in February, when, for the first time in history, the Court issued a stay on a regulation before a lower court had ruled on its legality. Just days after that decision, the death of Justice Antonin Scalia reshaped the legal future of the plan. Our senior attorneys, Jack Lienke and Denise Grab, each weighed in on the implications. Grab told Bloomberg BNA that a Supreme Court split along partisan lines is still not certain, given that Chief Justice John Roberts and Justice Anthony Kennedy, both of whom voted to stay the rule, may take a “less dogmatic” view of its merits than Scalia would have. Both justices have previously voted in favor of the EPA’s authority to regulate greenhouse gases under the Clean Air Act.

How the Stay Affects EPA Action and Deadlines

The Supreme Court’s stay of the Clean Power Plan unquestionably bars the EPA from enforcing any of the rule’s requirements until the lawsuits against it are fully resolved. But opponents of the plan claim that the stay requires the EPA to halt all work related to the rule, including the finalization of model trading rules for states seeking to use emissions trading systems to meet their carbon reduction targets. Opponents also claim that the stay automatically “tolls” all of the Clean Power Plan’s compliance deadlines, delaying implementation for at least the amount of time that the stay was in place. In a new piece in The Hill, Richard Revesz explains why these arguments are incorrect. He discusses the ample precedent for federal agencies continuing to work on policies stayed by courts, and clarifies the difference between a stay and an injunction. Revesz also explains that the stay order says nothing about tolling, and makes clear that if the rule is upheld, it will be up to the D.C. Circuit to decide whether and how to adjust the rule’s timeline, which doesn’t call for full compliance until 2030.

New Research on Clean Power Plan Precedents

As the Clean Power Plan litigation proceeds in the D.C. Circuit, we recently published some an article in the Environmental Law Reporter, a legal journal. Familiar Territory: A Survey of Legal Precedents for the Clean Power Plan, highlights a wide variety of regulations from the Clean Air Act’s 45-year history that provide substantial precedent for the flexible design of the Clean Power Plan. This article calls into question challengers’ claims that the rule is unprecedented (these claims are made repeatedly in recently filed briefs for the D.C. Circuit case). An earlier version of this research was cited in the environmental intervenors’ brief in the Clean Power Plan stay litigation, and in a declaration by Dr. Susan Tierney. The research was highlighted in a recent E&E News article.

Petitioners Submit D.C. Circuit Briefs

The states and companies that are suing to overturn the Clean Power Plan recently filed their opening briefs in the D.C. Circuit litigation. Their briefs focus largely on three arguments: (1) EPA departed from the requirements of Clean Air Act Section 111(d) when it chose to set standards based on a best system of emission reduction that involves not a technological process at particular plants, but instead action by the source’s owners or operators to shift generation from higher-emitting generators to lower-emitting generators; (2) EPA lacks statutory authority under Section 111(d) to promulgate the rule because it is already regulating power plants (albeit for other pollutants) under Section 112; and (3) the rule improperly forces states to carry out federal policy in a particular way, instead of allowing the proper amount of flexibility to the states, violating both the statute and the Constitution. The government, along with various intervenors supporting the plan, offered rebuttals to each of these arguments during the stay litigation. They will file their opening briefs for this case next week.

Recent Analysis and Insights

The Supreme Court’s Clean-Power Power Grab

Georgetown Environmental Law Review (forthcoming) by Lisa Heinzerling

In staying EPA’s Clean Power Plan, the Supreme Court for the first time stopped a nationally applicable agency regulation prior to an initial decision on the merits of the rule in a lower court.

Judge Garland Has a Strong Record of Environmental Protection

Legal Planet by Ann Carlson

President Obama’s nomination to the U.S. Supreme Court, Judge Merrick Garland, has a record on the D.C. Circuit Court that environmentalists should celebrate. He is almost always deferential to agency interpretations of statutes, including environmental ones.

What Will Come from the Supreme Court’s Stay of EPA’s Clean Power Plan?

RegBlog by Craig N. Oren

The United States Supreme Court did something extraordinary this month: it halted the implementation of an administrative regulation before the circuit court of appeals could decide whether the regulation is valid. There is no known precedent for this action. And yet, it is unclear what significance the stay, as it is called, will have.

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Institute for Policy Integrity   |   Cost of Carbon Pollution Project
New York University School of Law
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