In a 5-4 order, the conservative wing of the U.S. Supreme Court stayed implementation of President Barack Obama’s carbon rule while litigation is ongoing.
The court issued the order less than a month after the U.S. Court of Appeals for the D.C. Circuit denied a request made by Alabama and 28 other states to halt implementation of the Clean Power Plan as the lawsuit proceeds.
The text of the order is strikingly simple:
The application for a stay submitted to The Chief Justice and by him referred to the Court is granted. The Environmental Protection Agency’s “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units,” 80 Fed. Reg. 64,662 (October 23, 2015), is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, if such writ is sought. If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically. If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.
Justice Ginsburg, Justice Breyer, Justice Sotomayor, and Justice Kagan would deny the application.
This a big deal. The order will remain in effect until the Supreme Court weighs in on the case, even if a lower court upholds the rule in the meantime. In all likelihood, the Supreme Court’s order means the ultimate fate of President Obama’s Clean Power Plan won’t be determined until someone else is sitting in the White House.
Perhaps more significant is how unprecedented this is. According to The New York Times, the Supreme Court has never before stopped the implementation of a regulation before a ruling by a federal appeals court. As such, the order sends an ominous signal that the rule may well be invalidated when the court finally hears the rule. If Obama’s carbon rule fails to pass legal muster, the debate over carbon emissions shifts back to Congress, where it rightly belongs.
The order also changes the playing field for the states, which faced a September deadline either to submit a carbon-reduction plan consistent with the rule or request an extension. Absent the deadline, states without carbon-emission restraints have precious little motivation to develop them outside of political pressure from state voters.
The EPA’s arrogant reaction to the court’s 2015 opinion in Michigan v. EPA may be partially to blame for the order. Before the Supreme Court’s decision in that case, EPA Administrator Gina McCarthy noted that, even if the court ruled against the agency: “Most of [the power plants] are already in compliance, investments have been made, and we’ll catch up.”
Those remarks clearly demonstrated the risks the court faced in allowing an EPA rule of questionable validity to take effect before its legality could be ascertained. In the Michigan case, even though the rule was rejected and sent back to the lower courts, the damage already had been done. The court here made sure the EPA couldn’t get away with that again.