States sidestep convention in bid for Supreme Court action

By Ellen M. Gilmer | 01/27/2016 07:07 AM EST

States opposed to the Obama administration’s Clean Power Plan made good on a recent threat to take their battle to the Supreme Court.

States opposed to the Obama administration’s Clean Power Plan made good on a recent threat to take their battle to the Supreme Court.

A coalition of 25 states and four state agencies yesterday urged Chief Justice John Roberts to issue an emergency stay blocking implementation of the divisive climate rule while the states and a throng of industry opponents challenge its legality.

The Clean Power Plan, which aims to slash greenhouse gas emissions from the power sector, has been under legal siege since before its release last summer. Critics say the rule goes beyond U.S. EPA’s authority and imposes impossibly steep costs on states and industry. The U.S. Court of Appeals for the D.C. Circuit last week denied a request to freeze the rule (EnergyWire, Jan. 22). In an extraordinary move, the states are now asking Roberts to reverse that decision.


"While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule," West Virginia Attorney General Patrick Morrisey (R) said in a statement.

In the request, the states argue that while the broader litigation is ongoing, states are sinking massive resources into drafting compliance plans to meet impending deadlines for a rule that they’re confident will be invalidated.

"Absent a stay, the Power Plan will — throughout the lifespan of this litigation — force massive, irreversible changes in terms of state policies and resources, power plant shutdowns, and investments in wind and solar power," the filing says.

Emergency stay applications are addressed to individual justices, each assigned to manage certain circuits. D.C. Circuit applications go to the chief justice, who weighs certain criteria — notably, whether at least four justices would likely agree to review the merits of the case — before granting or denying a request. Roberts may also confer with the other justices on the case or ask EPA and its allies to respond.

Dorsey & Whitney LLP attorney James Rubin noted that the states’ move is likely an attempt to push the Supreme Court to consider the merits of their Clean Power Plan challenge early. The full case is expected to land before the justices after the D.C. Circuit issues a decision later this year.

"Petitioners are essentially seeking to skip over the DC Circuit and bring their case to the Supreme Court, where they believe they have a better chance of success on the merits," he said in an email. "Though styled as a stay motion, they are looking to secure a procedural ruling based on issues directly related to the merits."

EPA did not respond to a request for comment yesterday, but supporters of the agency’s climate rule criticized the states’ application as a political statement rather than an earnest legal effort. New York University School of Law’s Richard Revesz called the challenge "extraordinarily and unthinkably unlikely to prevail."

Natural Resources Defense Council attorney David Doniger said the states were relying on the same arguments the circuit court rejected.

"The states are trotting out the same arguments that haven’t persuaded the D.C. Circuit panel," he said. "A Supreme Court stay at this stage of a case that is in the appeals court would be even more unusual than a stay from the appeals court itself."

Joining West Virginia in the request are Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Mississippi Department of Environmental Quality, the Mississippi Public Service Commission, the North Carolina Department of Environmental Quality and the Oklahoma Department of Environmental Quality.