EPA’s climate rule for power plants has survived an initial Supreme Court challenge, but the Biden administration’s legal opponents can take some hope from conservative justices who signaled willingness to eventually stop the president’s plan to rein in the nation’s second-largest source of carbon emissions.
Although the high court’s decision to keep the rule in place is an important early victory for EPA, Justice Brett Kavanaugh warned that the regulation for new gas- and existing coal-fired power plants may still be vulnerable.
“In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of the challenges to the Environmental Protection Agency’s rule,” said Kavanaugh, who was joined by Justice Neil Gorsuch.
But immediately pausing the rule did not make sense, Kavanaugh said, because compliance does not need to start until June 2025. Therefore, he wrote, the rule’s challengers are “unlikely to suffer irreparable harm” as litigation over the regulation makes its way through the U.S. Court of Appeals for the District of Columbia Circuit.
Kavanaugh noted that because the D.C. Circuit has agreed to an expedited briefing schedule, the lower court should decide the case during the current Supreme Court term, which runs through next summer. Challengers could then bring the case back to the high court before they are required to comply with the regulation.
While Kavanaugh agreed with the majority’s decision to keep EPA’s rule in place — for now — Justice Clarence Thomas indicated that he would have immediately blocked the regulation. Justice Samuel Alito recused himself from the request, which came up through the court’s emergency, or “shadow,” docket.
The National Mining Association said it was disappointed that the court declined to stop EPA’s “reckless rule,” but the group pledged to continue to press its case in the D.C. Circuit.
EPA’s rule requires the power sector to adopt carbon capture and storage technology to reduce greenhouse gas emissions, a technology that critics say is untested and too expensive.
“By constructing a rule that offers power plant operators the choice of either employing technologies that do not yet exist on a commercial, affordable scale or shutting down, the EPA has wrested control of our nation’s energy policy,” said Rich Nolan, president and CEO of the National Mining Association.
Nolan said that EPA has neither the legal authority nor the expertise to impose its rule.
If EPA’s regulation goes into effect, he said, “the results for the American people and economy will be catastrophic.”
Environmentalists hailed what they saw as a rare win before the Supreme Court, whose conservative supermajority has restricted agency powers in a string of recent decisions. In 2022, the court invalidated the Obama administration’s Clean Power Plan, a precursor to the Biden power plant rule that created a systemic approach to reducing carbon emissions from the sector.
“The majority of the court took a rare break from trashing our environmental laws to do the right thing,” said Charles Harper, senior power sector policy lead for Evergreen Action.
But Harper cautioned that the Supreme Court “remains a threat.” He pledged that the environmental group would continue efforts to revamp the court “and stop MAGA justices’ imperial power grab. Both our climate and our democracy are on the ballot this November.”
Meredith Hankins, senior attorney at the Natural Resources Defense Council, called the Supreme Court’s order a “victory for common sense,” given the number of recent rulings that have rolled back environmental protections.
Wednesday’s order marks the third time this term that the justices have declined to block EPA pollution rules challenged on the Supreme Court’s shadow docket. Hankins applauded the court for not bowing to challengers’ arguments.
“Power producers don’t need immediate relief from modest standards that kick in eight years from now,” Hankins said. “And states have plenty of time to begin their planning process.”
This story also appears in Climatewire.