In the week since the highest court in the U.S. issued an unprecedented ruling to stay the Clean Power Plan—as at least two states suspended compliance efforts—the passing of Supreme Court Justice Antonin Scalia may have boosted the odds that the Obama administration’s efforts to stem power plant carbon emissions will pass judicial review.
The stay issued on February 9 by the U.S. Supreme Court by a 5–4 vote was a certain “death knell,” some observers said, noting that issuance of a stay typically means a court believes the requesting party’s argument has merit and that it would suffer irreparable harm if the stay were not granted. Chief Justice Roberts and Justices Scalia, Alito, Thomas, and Kennedy voted to issue the stay.
“You Can’t Stay Climate Change”
For the Obama administration, the stay was no reason to despair. “This a legal decision that says, ‘Hold on until we review the legality,'” President Obama told an audience at a Democratic National Committee fundraiser on February 11, as reported by The Hill. “We are very firm in terms of the legal footing here.”
The Environmental Protection Agency (EPA) was just as confident. “We’re disappointed the rule has been stayed, but you can’t stay climate change and you can’t stay climate action,” EPA Press Secretary Melissa Harrison told POWER on February 11. “Millions of people are demanding we confront the risks posed by climate change. And we will do just that. We believe strongly in this rule and we will continue working with our partners to address carbon pollution.”
For Whom the Bell Tolls
The death of Supreme Court Justice Antonin Scalia on February 13 changed it all. A conservative who played a powerful role in shaping jurisprudence, Scalia wrote pivotal opinions in landmark cases, including Massachusetts v. EPA and, more recently, Michigan v. EPA.
Political wrangling seems certain to delay confirmation of Scalia’s replacement, possibly until the next president takes office in January 2017. With just eight justices on the high court—posing a 4–4 ideological split—the likelihood of a decision by the U.S. Court of Appeals for the District of Columbia Circuit being upheld (a 4-4 vote leaves the lower decision in place) is much greater. The federal court on January 21 denied the motions for stay requested by 27 states and numerous industry groups to block the Clean Power Plan from taking effect and ordered that consideration of the appeals be “expedited.”
Oral arguments at the federal court are scheduled to begin on June 2. The three-judge panel will comprise two appointed by Democrats (Judges Judith Rogers and Sri Srinivasan) and a Republican appointee (Judge Karen LeCraft Henderson).
Stateside: Shelving Compliance
But this has not fazed at least two states—Michigan and Wisconsin—which have abandoned efforts to comply with the rule.
On February 15, Wisconsin Gov. Scott Walker issued an executive order barring state agencies and other state entities from “developing or promoting the development of a state plan” in response to the finalization of the Clean Power Plan.
Michigan on February 16 followed suit, saying it would wait for courts to decide the future of the plan. Michigan Agency for Energy said that it will “suspend activities to comply with the rule and its timeline for submissions.” Instead, the state will complete a climate-modeling project that it has already paid for.
—Sonal Patel, associate editor (@POWERmagazine, @sonalcpatel)