Supreme Court urged to halt rule or risk irrelevance

By Robin Bravender | 01/27/2016 01:23 PM EST

Foes of U.S. EPA’s Clean Power Plan are warning the Supreme Court that failing to halt the rule now could effectively hand the Obama administration a victory before legal challenges are settled.

Foes of U.S. EPA’s Clean Power Plan are warning the Supreme Court that failing to halt the rule now could effectively hand the Obama administration a victory before legal challenges are settled.

A coalition of 25 states has petitioned Chief Justice John Roberts to block the EPA rule to cut greenhouse gases from power plants, in spite of a lower court’s order last week that refused to freeze the rule.

The plea to the high court is widely seen as a long shot and is the latest in a series of unusual steps challengers have taken to oppose the rule, which is central to the administration’s environmental agenda but which critics paint as a "power grab."


"It’s an extraordinary petition," said Justin Savage, a former Justice Department environmental attorney now at Hogan Lovells.

But "the rule itself is extraordinary," Savage added. "This is the environmental rule that could have the largest impact on how electricity is delivered to customers throughout the country."

If the justices don’t act now, the states told the court, a later decision to knock down the rule may not mean much if states and utilities have already been forced to comply.

EPA’s challengers point to a Supreme Court decision last year in the case Michigan v. EPA, in which the high court found that EPA’s rule to regulate mercury pollution from power plants was illegal.

That decision "starkly illustrates the need for a stay in this case," state challengers told Roberts.

"The day after this Court ruled in Michigan that EPA had violated the Clean Air Act … EPA boasted in an official blog post that the Court’s decision was effectively a nullity," they said. "Because the rule had not been stayed during the years of litigation, EPA assured its supporters that ‘the majority of power plants are already in compliance or well on their way to compliance.’"

The Supreme Court sent the mercury rule back to the U.S. Court of Appeals for the District of Columbia Circuit. That court recently agreed to keep it in place while EPA tweaks the regulation in light of the high court’s ruling.

But while the high court did topple the mercury rule, finding that the agency hadn’t properly considered costs, that opinion was seen as narrow. The agency is widely expected to keep the rule as it is after issuing a forthcoming finding that the benefits of its air toxics standards justified the costs of the rule.

Backers of the Clean Power Plan say it’s hard for challengers to show they’ll be hurt immediately, given that they won’t be required to slash power plant emissions until 2022. But states and industries argue that they’ll need to plan for the rule much sooner. States must submit final plans by this September or submit initial plans with requests for extensions until 2018.

The state application filed yesterday was sent to Roberts because he oversees requests for emergency actions related to D.C. Circuit proceedings.

Such applications can also involve efforts to get a stay of execution or a restraining order from the court, but they’re unusual in cases involving agency regulations.

In order to get a stay, applicants must generally show that there’s a "reasonable probability" that four justices will agree to review the merits of the case, that there’s a "fair prospect" that a majority of the court will find that the decision below was erroneous and that a denial of the stay would result in irreparable harm, according to a Supreme Court guidance document. The court may also balance the relative harms to the parties on both sides of the case as well as the public interest.

Such applications are normally handled without hearings or oral arguments, according to the court. Roberts could act alone on the application or refer it to the full court for consideration.

Additional requests to the Supreme Court may also be filed by other EPA opponents. A broad coalition of utilities, industries and other groups have filed a combined 39 lawsuits from a total of 157 petitioners asking the D.C. Circuit to review the rule.

Backers of the EPA rule say they’re confident the court will act swiftly to deny the states’ petition.

"It’s extraordinary to get a stay from the D.C. Circuit," said Natural Resources Defense Council attorney David Doniger. "It’s extra, extra extraordinary to get one from the Supreme Court."

Meanwhile, as challengers wait for word from the Supreme Court, the lawsuits are moving along in the lower court.

Parties on both sides filed proposed schedules with the appeals court today regarding word limits and schedules for briefings on the case.

The D.C. Circuit announced last week that it will hold oral arguments on the case on June 2.

Click here to read the proposal from EPA and its allies.

Click here to read the proposal from states and industry groups.