Just days after the federal court of appeals in Washington rejected their bid to block President Obama's Clean Power Plan, the coal industry and its political allies are pleading for immediate relief from the U.S. Supreme Court. Coming after a string of failed attempts to stop the carbon pollution standards, the polluters' latest gambit faces long odds.
Update Feb. 4: NRDC and allies file brief in Supreme Court opposing stay of the Clean Power Plan.
Jumping over an appeals court that's in the midst of reviewing federal regulations is a highly unusual, perhaps unprecedented maneuver. The High Court almost never gets involved this early, before any lower court has issued a decision on the merits.
To explain what's going on, let's start with the procedure. Using a tactic normally reserved for last-minute appeals to block irrevocable acts such as executions or deportations, the states, coal companies, utilities, and trade associations opposed to the Clean Power Plan filed papers last week with Chief Justice John Roberts -- the Justice assigned to the D.C. Circuit appeals court -- asking for a "stay" of implementation, the same relief the appeals court denied on January 21st.
The Chief Justice asked for the Environmental Protection Agency's response this Thursday, February 4th. As intervenors in the appeals court case, NRDC and our allies -- 18 states, more than two dozen power companies, clean energy associations, and public health and environmental groups -- will also file responses on Thursday. Chief Justice Roberts, or possibly the whole Court, will then rule on the stay request, probably within a few weeks.
Meanwhile, the Clean Power Plan's foes and supporters are writing their briefs on the merits for the D.C. Circuit on an expedited schedule, and that court will hear oral arguments quickly, on June 2nd and 3rd, and probably issue its decision within several months. (It's important to understand that the Supreme Court now is considering only whether to stay implementation pending the appeals court's decision on the merits. The appeals court gets the first shot at the merits; another round of petitions to the Supreme Court can be filed after that.)
The polluters and their allies face many obstacles. A stay is extraordinary relief rarely granted even at the appeals court level. The appeals court weighed the arguments and the evidence and said no. It would be extra, extraordinary to get a stay now from the Supreme Court Justices, who view their job as reviewing decisions of the lower courts and correcting major errors, not making those decisions in the first instance.
Justices will be reluctant to jump in on the legal questions (Does the Clean Air Act authorize the Clean Power Plan?) before the appeals court has had its say. And they will be even more reluctant to jump in on the factual questions (Is a regulation coming into effect only in 2022 causing any irreparable harm now? And what about harm to others or to the public interest?) that the D.C. Circuit has already weighed and measured.
As noted above, this is only the latest in a long string of failed attempts to convince the lower courts that the Clean Power Plan and the companion standards for new power plants must be stopped. In fact, the polluters and their allies have already lost many times: four times the D.C. Circuit -- even trying to challenge EPA's proposal before it was finished -- not to mention two tries in federal district courts in Nebraska and Oklahoma, and one trip to the 10th Circuit.
On Thursday we will urge the Supreme Court to deny the stay and maintain the regular order of litigation. After the D.C. Circuit rules, the Justices will have their opportunity to decide then whether that court got it right (it's a safe bet some parties will appeal).
We are confident that the Clean Power Plan rests on firm legal ground. The Supreme Court has already held, in the 2011 case called American Electric Power v. Connecticut, that EPA is authorized to curb power plants' carbon pollution under Section 111(d) of the Clean Air Act, the very provision EPA has used here. The flexible, market-based structure of the Clean Power Plan is very similar to the one used to curb other pollutants that the Supreme Court upheld in a 2014 case called EPA v. EME Homer City. And just last week, in FERC v. EPSA, the Supreme Court upheld Federal Energy Regulatory Commission demand-response regulations that are premised, like the Clean Power Plan, on the fact that "almost all electricity flows ... through an interconnected 'grid' of near-nationwide scope."
On Thursday we will also show that our opponents' hyperbolic claims of imminent irreparable injury have no substance. Power companies aren't being irreparably harmed now, because they don't have to meet any emission limits until 2022. Coal companies and the coal wing of the power industry failed to prove they must do anything now. Indeed, experts witnesses supporting EPA proved that power companies actually have strong incentives to wait until state plans are completed before they invest in new plants or retire old ones, and that they'll still have the time they need to comply at reasonable costs.
The opposing states can't show they're being irreparably harmed now because they have until 2018 to finish state plans. They claim they are being bullied -- "commandeered" is the legal term -- but the Clean Air Act and the Clean Power Plan give them the option to do nothing at all, and to leave the job of regulating power plants' carbon pollution entirely to EPA.
We'll also inform the Supreme Court about the damage a stay would do to the global effort to stem climate change. In the D.C. Circuit stay proceedings, former Secretary of State Madeleine Albright, informed the court that the Clean Power Plan was critical to achieving the commitments of more than 186 other nations in the run-up to the Paris Climate Agreement in December 2015. Citing the critical role of U.S. leadership, Albright said "if our country were to falter or renege on its commitments, we will undermine others' performance," setting back global cooperation on climate protection for years. For these reasons, Albright testified that a stay would have "serious adverse foreign policy consequences" and be "sharply contrary to the public interest."
It's unlikely that the Justices will want to re-weigh the thousands of pages of expert testimony and evidence that the D.C. Circuit already considered on these questions of irreparable harm and damage to foreign policy. It's unlikely that they will want to second-guess that court's conclusion that "Petitioners have not met the stringent requirements for a stay" set forth in Supreme Court precedents. So we are optimistic that the opponents' latest extraordinary gambit will not succeed, leaving the Clean Power Plan in place while the case goes forward in the normal way in the appeals court.
Smart state and industry leaders concluded months ago that the blizzard of litigation against the Clean Power Plan was unlikely to succeed, in the short or long run. So they are already hard at work developing state plans and corporate strategies to meet the Plan's goals. They have every reason to keep at it.