The Supreme Court on Wednesday declined to temporarily freeze the Biden administration’s rule curbing carbon pollution from the power sector — but some of the justices indicated that the legal battle over EPA’s regulation is far from over.
In a short order, the court said the rule targeting planet-warming emissions from new gas- and existing coal-fired power plants would remain in place as litigation over the regulation plays out before a lower bench.
But Justice Brett Kavanaugh, joined by Neil Gorsuch, said state and industry opponents of the rule had “shown a strong likelihood” that they would prevail when the courts evaluate the merits of the regulation.
Justice Clarence Thomas said he would have granted the stay. Justice Samuel Alito did not participate in considering the request.
The denial is the third time this term the Supreme Court has declined to block EPA pollution rules challenged on its emergency docket, or “shadow docket.” The court also recently rejected bids to freeze EPA’s regulation on air toxics, as well as a separate rule governing methane emissions from the oil and gas sector.
EPA and its supporters had feared the justices were poised for a repeat of their decision in 2016 when the court issued an emergency order freezing the Obama administration’s Clean Power Plan, a landmark rule that created a systemic approach to reducing carbon emissions from the sector. The rule, which the Supreme Court’s conservative supermajority ultimately invalidated in the 2022 decision West Virginia v. EPA, never went into effect.
The Supreme Court’s decision to stay out of the legal fight, at least for now, is a short-term win for champions of the Biden rule, which relies on carbon capture and storage technology to limit emissions.
EPA supporters have maintained that federal law allows the agency to force industries to adopt new technologies and have said the rule is within the agency’s traditional power to regulate pollution at the source.
Critics of the regulation have said the technology is not ready to be applied at the scale the rule requires and that EPA is acting outside the authority granted by Congress. Lawsuits against the rule are playing out in the U.S. Court of Appeals for the District of Columbia Circuit.