Initial Thoughts on Supreme Court Stay of Clean Power Plan

by Christopher J. Walker — Tuesday, Feb. 9, 2016@chris_j_walker

Tonight in a 5-4 decision the Supreme Court stayed the Clean Power Plan regulations, pending judicial review in the D.C. Circuit and subsequent review in the Supreme Court. Here  is the order per SCOTUSblog. To state the obvious, that five Justices are willing to stay the regulations in the D.C. Circuit suggests there are at least the required four votes for plenary review of the D.C. Circuit’s eventual ruling in the case.

The U.S. Chamber of Commerce has collected and made publicly available all of the case documents in the case here. I hope to have more time later to blog about the stay briefing and ruling, but the asserted irreparable harm in this case was something I thought may give the Court (and D.C. Circuit before it) some pause. In essence, the Petitioners allege there will be irreparable harm because many coal plants will decide to close before judicial review concludes rather than to continue invest in those plants — something of which the EPA was well aware. Here’s a taste from the U.S. Chamber’s stay application (footnote 5):

The reason why EPA’s modeling shows immediate plant closures is that maintaining coal-fired plants is very expensive; if the Rule will render the plants inoperable when it comes fully into effect, many plant owners will choose to shut down their plants during the period of judicial review rather than make pointless investments in units that will ultimately have to be closed. Harbert Decl. ¶¶14, 19, Ex. 7-A. Administrator McCarthy herself has emphasized that the rule is already causing significant shifts in investments. McCarthy Remarks, Ex. 8-F.

For those interested, the stay briefing is definitely worth a read. It will be interesting to see if the Supreme Court’s stay changes the dynamic of the D.C. Circuit’s review of the regulations, and it surely signals that the votes are there (at least right now) for the Supreme Court to review the case.

UPDATE 2/9: Via the administrative law professors’ listserv, the Hoover Institution’s Adam Whiteadds the following (posted with permission):

To the extent that today’s stay marks a change of pace at the Supreme Court, one wonders if the EPA didn’t set itself up for this when it did a victory lap after losing Michigan v. EPA, saying that the decision was irrelevant because industry already sunk the regulatory costs while the appeal was pending. The Michigan case, and the EPA’s blunt statement after losing it, could prove to be a paradigm-shifter.


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About Christopher J. Walker

Christopher Walker is a law professor at The Ohio State University Moritz College of Law. Prior to joining the law faculty, Professor Walker clerked for Justice Anthony Kennedy of the U.S. Supreme Court and worked on the Civil Appellate Staff at the U.S. Department of Justice. His publications have appeared in the California Law Review, Michigan Law Review, Stanford Law Review, and University of Pennsylvania Law Review, among others. Outside the law school, he serves as one of forty Public Members of the Administrative Conference of the United States and as Chair-Elect of the American Bar Association’s Section on Administrative Law and Regulatory Practice. He blogs regularly at the Yale Journal on Regulation.

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