The Supreme Court is facing calls to undermine EPA’s efforts to curb planet-warming emissions from the power sector for a second time.
But at least some legal observers questioned whether the Biden administration’s power plant rule will meet the same fate on the high court’s “shadow” docket as the Obama-era Clean Power Plan did nearly a decade ago.
“For the Supreme Court to grant a stay would be shocking, and truly ominous,” Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia University, said of President Joe Biden’s rule.
The National Rural Electric Cooperative Association (NRECA) and Republican state attorneys general filed parallel requests Tuesday to the Supreme Court’s emergency docket to stop EPA’s rule limiting greenhouse gas emissions from existing coal and new gas-fired power plants.
America’s Power and the National Mining Association are expected to file their own joint application to the court this week.
The applicants are asking the justices to put the Biden rule on ice while they and other opponents make their case to a lower court that EPA exceeded its authority. That would include the time it would take for the Supreme Court to consider any appeals.
If they get their way, EPA critics could repeat the massive victory they won in 2016, when the Supreme Court stayed the Obama Clean Power Plan — a move that prevented the regulation from ever going into effect. The court later invalidated the rule in 2022 in West Virginia v. EPA.
“This rule poses a significant threat to affordable and reliable electricity for millions of Americans, especially as power demand skyrockets across the nation,” NRECA CEO Jim Matheson said of the Biden rule in a statement Tuesday.
“A Supreme Court stay is necessary to prevent immediate harm to the nation’s electric grid and the American economy,” Matheson continued. “The path outlined by the EPA is unlawful, unrealistic and unachievable.”
A court order freezing the Biden rule could mean delays in establishing federal standards to address pollution from the nation’s second-largest source of greenhouse gas emissions. And if former President Donald Trump wins a second term, his administration would likely ensure that the rule is never implemented.
A Supreme Court stay of Biden’s rule “wouldn’t be good,” said Sean Donahue, an attorney who wrote a friend of the court brief in support of the regulation on behalf of the Environmental Defense Fund in lower court proceedings.
The power sector is “our biggest stationary source category for CO2 emissions,” he said. “At the national level, we’ve never had operative emissions limits.”
Even if the rule is ultimately upheld by the court, Donahue said, a stay would involve delays that would likely prompt states to ask for extension on deadlines to address power plant emissions.
The Clean Power Plan’s fall
The new requests for Supreme Court intervention are reminiscent of the legal fight over the Obama administration’s initial foray into regulating power plant emissions.
Opponents of the Obama rule — led by West Virginia Attorney General Patrick Morrisey (R) — made a long-shot bid to the Supreme Court to halt the Clean Power Plan. In 2016, the justices shocked the legal community by agreeing to their request.
The Trump administration replaced the rule with a much more limited standard in 2019, and the Supreme Court eventually ruled in West Virginia in 2022 that the regulation exceeded EPA’s authority — even though the rule never officially took effect.
In the rule’s absence, the power sector met the Clean Power Plan’s goals a decade ahead of schedule.
The significance of the Clean Power Plan was less about the rule’s actual emissions limits than about EPA creating an effective long-term regulatory structure for the sector, said Donahue.
If the Supreme Court were to bar the Biden power plant rule, that would call into question not only EPA’s plan to limit emissions from coal-fired power plants, which are already headed toward retirement, but also controls for brand-new gas plants, Donahue said.
“If those are built without controls, that’s a big deal because they’re going to be around for a long time,” he said. “That’s a big commitment to polluting.”
Evolution of the ‘shadow’ docket
In the years since the justices froze the Clean Power Plan, the Supreme Court has become much more willing to intervene in cases via its emergency docket.
Just last month, the justices issued a 5-4 decision to block EPA limits on smog-forming pollution that crosses state lines under its “good neighbor” rule. The case was brought to the justices through the court’s shadow docket.
Still, legal observers said the Biden rule may not grab the high court’s attention in the same way the Clean Power Plan did. The Obama rule sought to shift electricity generation from coal to renewable power, while the Biden rule focuses on carbon capture and storage, or CCS, technology.
“It certainly looks like a less likely candidate for a Supreme Court stay than did the CPP or cross-state rule,” said Jonathan Adler, a law professor at Case Western Reserve University School of Law.
He noted that the regulation was more tailored than EPA’s prior regulation.
“The principal issue here is whether CCS is an adequately demonstrated technology — a purely technical, not legal, issue that is squarely within EPA’s expertise,” said Gerrard.
Opponents of the rule say CCS technology is not yet ready to be used at the scale envisioned by the Biden regulation.
While the Supreme Court doesn’t typically weigh in on such technical questions, Donahue noted, the justices did get involved in similarly complex issues when it took up the good neighbor rule.
The Rao factor
An explanation provided by a federal appeals court in declining to stay the Biden rule may influence the Supreme Court to do the same.
The U.S. Court of Appeals for the District of Columbia Circuit — where the litigation over the power plant rule originated — found last week that the Biden regulation did not run afoul of the major questions doctrine, the legal rationale the Supreme Court used to invalidate the Clean Power Plan in West Virginia.
Additionally, the D.C. Circuit panel that rejected the stay included Judge Neomi Rao, who had served in the Trump administration as head of the Office of Information and Regulatory Affairs before the former president appointed her to the court.
Rao is “no fan” of EPA regulation, said Dan Farber, faculty director at Berkeley Law School’s Center for Law, Energy & the Environment, in a recent blog post: “If she thought there was no basis for a stay, there’s a good chance some key conservative votes at the Supreme Court will go the same way.”
Meredith Hankins, senior attorney at the Natural Resources Defense Council, said the Biden rule’s opponents had not been able to show they would be irreparably harmed by the regulation or that they were likely to prevail before the D.C. Circuit.
“Even if the Supreme Court were to take the unusual step of staying the rule on its emergency shadow docket, the D.C. Circuit has already pointed out that applicable compliance deadlines for power plants are far in the future, ‘years after this case will be resolved,'” she said in an email.
The only consequence for states is that EPA will step in if they fail to submit a plan, she added.
“Either way, I am confident this rule will take effect as planned and bring the crucial climate protections we need,” Hankins said.
This story also appears in Climatewire.
