U.S. Supreme Court issues stay of president’s Clean Power Plan

The U.S. Supreme Court on Tuesday (Feb. 9) issued a stay of President Obama’s historic Clean Power Plan, blocking the federal Environmental Protection Agency from implementing the far-reaching rules that would dramatically reduce carbon dioxide emissions across the U.S. by shutting down most of the nation’s coal-fired power plant fleet.

In a ruling Tuesday evening, Chief Justice John Roberts issued the stay pending disposition of the Clean Power Plan opponents’ petitions for review in the U.S. Court of Appeals for the District of Columbia Circuit and disposition of the applicants’ petition for a writ of certiorari, which forces the lower court to deliver its record in the case so that the higher court may review it.

“If a writ of certiorari is sought and the Court denies the petition, this order shall terminate automatically,” the Chief Justice wrote. “If the Court grants the petition for a writ of certiorari, this order shall terminate when the Court enters its judgment.”

The D.C. Circuit Court will now hear oral arguments on the merits of the states’ case on June 2. A final ruling from that court might not come for months.

Following the ruling, Gov. Asa Hutchinson applauded the high court’s decision. “I’m very pleased with the Supreme Court’s action in issuing a stay,” Hutchinson said. “The case raises important legal issues the Supreme Court should address and the end result will certainly impact Arkansans.”

West Virginia and Texas led Arkansas and 22 other states in challenging the EPA’s power plan on Oct. 23, 2015, the day it was published. The states argue the EPA exceeded its authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

“Make no mistake – this is a great victory for West Virginia,” Attorney General Morrisey said. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”

Those joining West Virginia Attorney General Morrisey and Texas Attorney General Ken Paxton in seeking a stay Jan. 26 with the Supreme Court were 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 and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and the Oklahoma Department of Environmental Quality.

President Obama and EPA officials unveiled the final version of their Clean Power Plan, which Arkansas Attorney Leslie Rutledge has said unlawfully exploits Section 111(d) of the Clean Air Act to force states to come up with plans to dramatically reduce carbon dioxide emissions by an average of 32% by 2030.

The original stay request filed in August by Morrisey’s office with the EPA asks the agency to “halt implementation of this onerous regulatory scheme until the courts have a chance to rule on its legality.” Rutledge and Morrisey both said they believe they have a strong case on the merits and will prevail in court once their case is heard.

“Absent an immediate stay, the Section 111(d) Rule will coerce the States to expend enormous public resources and to put aside sovereign priorities to prepare State Plans of unprecedented scope and complexity,” the stay request states. “In addition, the States’ citizens will be forced to pay higher energy bills as power plants shut down. In the end, the courts are likely to conclude that the Section 111(d) Rule is unlawful. At the very minimum, the States and their citizens should not be forced to suffer these serious harms until the courts have had an opportunity to review the Rule’s legality.”

The Arkansas Sierra Club called the Supreme Court’s decision “sharply divided,” given that Justice Ginsburg, Breyer, Sotomayor and Kagan all voted to deny the application.

“While we are disappointed that the Supreme Court temporarily stayed the Clean Power Plan, we are confident that this common-sense plan for cleaner air will ultimately be upheld,” said Glen Hooks, director of the Arkansas chapter of the environmental group.

Hooks continued: “The Clean Power Plan is an important step in battling the effects of climate disruption, and can also dramatically improve the health of Arkansans while boosting our state’s economy. Hard-working Arkansas families deserve a clean energy future and the Sierra Club is committed to helping make that future a reality.”

Although the Supreme Court’s stay does not halt the centerpiece of President Obama’s climate change policy, it will likely slow down the current timetable for states to comply with new standards for putting Arkansas on track to cut carbon pollution from the power sector by 2030.

Just three weeks ago, Arkansas Department of Environmental Quality Director (ADEQ) Becky Keogh and (PSC) Public Service Commission Chair Ted Thomas submitted final comments to federal environmental regulators, providing a snapshot of how Arkansas intends to move forward to respond to the EPA’s new carbon emission rules.

In a two-page letter to EPA Administrator Gina McCarthy, Keogh and Thomas cited Gov. Hutchinson’s dual strategy of seeking compliance options to the wide-ranging federal mandate while pursuing legal challenges through Rutledge’s office. The memo to the EPA director also included nearly 30 pages of comments from Arkansas regulators on the pros and cons of the president’s plan.

“The (ADEQ and PSC) submit these comments … with the caveat that we recognize and support the Arkansas Attorney General’s legal challenges to the Clean Power Plan and its ancillary components,” Keogh and Thomas wrote to McCarthy. “Rather, we are continuing to explore strategies for Arkansas to retain control and influence over our future, and to allow for growth in our state as our economic continues to expand.”

The final rules of the controversial Clean Power Plan take into account the more than 4.3 million comments received from states and stakeholders across the country following the first draft on June 2, 2014. Under the plan, each state will have an emission-cutting goal assigned to it and must submit a proposal to the EPA on how it will meet the target. Under the earlier proposal, Arkansas would have been required to reduce carbon emissions by 44%, but the final rule change lowers the requirement to 36%.

ADEQ officials have said Arkansas will have flexibility to meet EPA’s goal by using the energy sources that work best for it and by cutting energy waste. To date, all 50 states have demand-side energy efficiency programs; 37 have implemented renewable portfolio standards or goals; and 10 have adopted market-based greenhouse gas emissions programs.

Morrisey said Tuesday evening following the high court’s decision that the bipartisan coalition challenging the EPA carbon emission rules remain confident they can defeat the plan in court later this year. AG Rutledge agreed.

“The U.S. Supreme Court has given the people of Arkansas good news tonight,” she said. “By granting a stay of the Clean Power Plan, the Court has prevented an unlawful, out-of-touch plan drafted by bureaucrats in Washington from moving forward until the legal challenges are properly resolved. This helps ensure that Arkansas and other states are not forced to comply with a rule that will likely be found unlawful and will skyrocket energy rates. The law could not be clearer that the EPA does not have the legal authority to implement this regulation, and I am confident that as this case moves forward the Courts will recognize this fact and prevent its full implementation.”

UPDATE: ADEQ Director Becky Keogh and PSC Chairman Ted Thomas issued a joint statement on the U.S. Supreme Court stay.

“We are pleased by the Supreme Court’s decision to stay enforcement of the Clean Power Plan while the legality of the plan is being litigated. The granting of the stay indicates that the Supreme Court has serious reservations about the legality of the Clean Power Plan. We will strive to balance our obligation to be wise stewards of taxpayer money with our obligation to be fully prepared should the Supreme Court ultimately uphold the plan.”

Talk Business & Politics will update this story later tonight with additional comments.