Multitude of litigants lines up at Supreme Court

By Ellen M. Gilmer | 01/28/2016 07:40 AM EST

The throng of litigants that rushed to a federal appeals court when U.S. EPA released its Clean Power Plan is now lining up at the Supreme Court, making multiple requests for Chief Justice John Roberts to freeze the sweeping climate rule.

The throng of litigants that rushed to a federal appeals court when U.S. EPA released its Clean Power Plan is now lining up at the Supreme Court, making multiple requests for Chief Justice John Roberts to freeze the sweeping climate rule.

Utilities, coal companies and business groups yesterday asked the high court for an immediate stay of the rule, blocking its implementation while litigation plays out in the U.S. Court of Appeals for the District of Columbia Circuit. A coalition of 25 states and four state agencies made the same request to the chief justice Tuesday. The requests come after the D.C. Circuit last week declined to stay the rule while it considers the merits of the multifaceted litigation (EnergyWire, Jan. 22).

Roberts has asked the Obama administration to respond to the states’ request by Feb. 4. The chief justice may consider the requests on his own or refer them to the full court (EnergyWire, Jan. 27).


Approaching the Supreme Court while the circuit court litigation is ongoing is considered an extraordinary step, one that plaintiffs argue is necessary to ward off severe economic effects of the Clean Power Plan.

"The impact of this rule on the economy cannot be overstated," said Karen Harbert, president and CEO of the U.S. Chamber of Commerce’s Institute for 21st Century Energy, in a statement. "The rule causes many businesses in the electricity sector and beyond to radically restructure or even close their doors, setting off a domino effect in local communities across the country. And while this happens, Americans will see their electricity bills increase as reliable power sources are forced to retire."

The Chamber of Commerce led a group of 15 other business groups in a stay request to the Supreme Court yesterday. The coalition includes the National Association of Manufacturers, the National Federation of Independent Business, the American Chemistry Council and others.

A stay request from a large coalition of electric utilities made similar arguments yesterday, noting that utilities are investing billions of dollars in updates to generation and transmission infrastructure and are prematurely closing coal plants in anticipation of the rule. The coalition says EPA will achieve backdoor changes to the electric sector even if the rule is ultimately vacated.

"Because of the time it will take to litigate the case, absent a stay EPA likely will obtain its desired transformation of the power sector through irreversible investments, even if its rule is ultimately struck down," the coalition said in its request. The group includes the American Public Power Association, the Utility Air Regulatory Group, the National Rural Electric Cooperative Association and others.

Coal companies beat the same drum in their filing yesterday, noting that allowing the rule to move forward would result in "shuttered coal mines, tens of thousands of additional layoffs, and the economic devastation of the States and rural, economically depressed communities that rely on coal."

"The coal industry is suffering irreparable harm now, as the Power Plan forces utilities to make investment decisions away from coal today and States begin the restructuring of the power sector within their respective borders today," industry lawyers told the court. "Irreparable injury will occur long before the panel decision in the Court of Appeals."

Murray Energy Corp., Peabody Energy Corp., the National Mining Association and the American Coalition for Clean Coal Electricity are included in the request.

Asked for comment, EPA restated its position from last week expressing satisfaction that the D.C. Circuit left the rule intact. Clean Power Plan supporters, meanwhile, have been outspoken in their criticism of industry and states’ Supreme Court action. Environmental attorneys have called the approach a long shot.

In an email yesterday, Heartland Institute policy adviser David Applegate, a lawyer, acknowledged the unconventional nature of the Supreme Court requests but maintained that the Clean Power Plan’s far-reaching effects are exactly the type of impacts the high court should intervene to avoid.

"If ever a case existed for the courts to intervene with equitable relief — in this case a stay of the lower court’s ruling — it is here, where the jobs of the people, the nation’s ability to meet its energy needs, and a coherent environmental and energy policy are at stake," he said, "and a refusal to grant the stay becomes effectively irreversible."