(Bloomberg) — A divided U.S. Supreme Court blocked
President Barack Obama’s sweeping plan to cut emissions from
power plants, putting on hold his most ambitious effort to
combat climate change.
The 5-4 order Tuesday halts the Environmental Protection
Agency’s Clean Power Plan until at least the final months of
Obama’s presidency — and casts doubt on its ultimate fate
before the nation’s highest court by suggesting concern among a
majority of the justices.
Utilities, coal miners and more than two dozen states say
the agency had overstepped its authority and intruded on states’
The court action blocking implementation until an appeals
court can rule “confirms that the legal justification for the
Clean Power Plan should be examined by the courts before scarce
state and private resources are used to develop state plans,”
said Melissa McHenry, a spokeswoman for American Electric Power
Co., one of the biggest coal users among U.S. utilities.
The delay is a blow to Obama’s environmental agenda,
highlighting the prospect that his signature program for
combating climate change could be in legal jeopardy. It also
risks undermining the U.S. commitment to pare greenhouse gas
emissions as part of an international accord reached in Paris
The White House said it disagreed with the court’s action
and expressed confidence it would prevail in the long run.
“The Clean Power Plan is based on a strong legal and
technical foundation,” Obama press secretary Josh Earnest said
in an e-mailed statement.
The plan will now be on hold until the Supreme Court either
rules or refuses to get involved. The EPA won’t be able to
enforce a Sept. 6 deadline for states to either submit their
emission reduction plans or request a two-year extension.
A federal appeals court is hearing challenges to the rule
on an expedited basis, with arguments set for June 2. If the
court rules quickly enough, the Supreme Court could consider the
case in the nine-month term that starts in October.
A final ruling in 2017 would leave it up to Obama’s
successor — potentially one of the Republicans who have
criticized the Clean Power Plan on the campaign trail — to
decide how to respond.
“We’re disappointed the rule has been stayed,” said Melissa
J. Harrison, press secretary for the EPA. “But you can’t stay
climate change and you can’t stay climate action.”
Senior administration officials, who acknowledged that the
order took them by surprise, stressed that the final state
implementation plans weren’t required until 2018, despite
initial blueprints due in September. The plan’s timeline was
created to absorb delays.
That gives states ample time and flexibility to develop
plans that meet their targets, one official said, speaking on
the condition of anonymity.
The EPA rule requires states and utilities to use less coal
and more wind power, solar power or natural gas. It is designed
to bring about cuts in carbon emissions from power plants of 32
percent below 2005 levels by 2030.
The rule runs more than 1,500 pages and takes a unique
approach, setting targets that each state must meet in cutting
the amount of carbon pollution from power plants. It is designed
to accelerate a shift away from coal as the chief source of
electricity generation, toward natural gas, wind and solar
But its broad structure — demanding that states meet
targets, going beyond power plants if necessary, including by
adding new renewable power generation or and boosting efficiency
— drew objections. The agency said that showed flexibility, but
opponents weren’t persuaded.
It’s “the most far-reaching and burdensome rule EPA has
ever forced onto the states,” 26 states led by West Virginia and
Texas argued in court papers.
The Supreme Court had never before granted a request to
halt a regulation before review by a federal appeals court, the
In a statement, West Virginia Attorney General Patrick
Morrisey said he was “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.”
David Doniger, director of the climate and clean air
program at the Natural Resources Defense Council that supports
the plan, said that states, financial leaders and other
interests will continue pushing to clean up the power sector
“and will keep moving to incorporate strategies and public
policies leading toward a clean energy economy.”
But Jeff Holmstead, a former EPA assistant administrator,
said in a phone interview that the delay is sure to chill action
by states to comply with the plan.
“The states that have frantically been trying to figure out
how to comply certainly put their pens down tonight,” said
Holmstead, now a partner at Bracewell LLP.
The court gave no explanation for its order. Voting to
grant the delay were Chief Justice John Roberts and Justices
Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel
Alito. Dissenting were the four Democratic appointees: Justices
Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena
Prior to Tuesday’s order, the EPA had been largely on a
winning streak before the federal judiciary.
The Supreme Court gave the EPA victories in 2013 and 2014,
upholding its greenhouse-gas permitting rules and regulation of
pollution that crosses state lines. It also rejected a plea to
reconsider its 2007 decision letting the agency regulate
But last year the court sent EPA’s far-reaching rule on
mercury emissions back to the agency for further analysis, a
decision that has had no practical impact so far but was raised
as a reason the court should grant this delay.
“The stay is a signal the Supreme Court has serious
concerns with the power plan,” said Mike Duncan, president of
the American Coalition for Clean Coal Electricity, which
includes coal-burning utilities, producers and rail operators.
“We’re optimistic the power plan will ultimately be rejected.”
An attorney for the Sierra Club said the decision is only a
temporary reprieve for coal.
“The coal industry is on life support already; it was
without the Clean Power Plan, and this should not give them a
glimmer of hope,” said Sierra Club Managing Attorney Joanne
Spalding. “The transition we’re experiencing in the electric
sector away from coal and other fossil fuels to clean energy has
been going on for years and will continue. EPA is following the
trends that are already occurring in the electric sector — not
creating new trends.”
A three-judge appellate panel rejected a bid for a delay on
Jan. 21, prompting foes to turn to the Supreme Court.
The Obama administration said power plants wouldn’t face
any deadlines to begin cutting emissions until 2022 at the
earliest, and wouldn’t have to be in full compliance until 2030.
Administration lawyers accused states and businesses of seeking
an “extraordinary and unprecedented” delay of the entire
regulation before any judge had ruled on it.
“A stay that delays all of the rule’s deadlines would
postpone reductions in greenhouse gas emissions and thus
contribute to the problem of global climate change even if the
rule is ultimately sustained,” U.S. Solicitor General Donald
The challengers, including Southern Co., Peabody Energy
Corp., the largest U.S. coal-miner, and the U.S. Chamber of
Commerce, said companies and states alike already were having to
prepare for the rule to take effect.
Southern and other utilities told the justices that,
without Supreme Court intervention, companies would have to
“begin the complex and lengthy process of shutting down or
curtailing generation from existing plants and shifting that
generation to new sources.”
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