Tuesday, February 9, 2016

Supreme Court Stops Clean Power Plan in Its Tracks

by Sue Cowell, in Washington

The US Supreme Court stayed implementation of the Clean Power until the DC Circuit Court hears the pending litigation.  States and others requesting a stay argued that they would suffer irreparable harm during the pendency of the litigation. 

The US Supreme Court's stay remains in place until it issues a decision should it agree to hear an appeal of the DC Circuit Court's decision.  If the US Supreme Court hears an appeal, it's possible that its decision would not be issued before President Obama leaves office.  The US Supreme Court did not offer any explanation for the stay, but its decision was not unanimous.  Justices Ginsburg, Breyer, Sotomayor, and Kagan would not have granted the stay.


The DC Circuit Court had ordered an expedited schedule for briefing and scheduled June 2, 2016 for oral argument.  As a result, many expected a ruling by the DC Circuit before September 6, 2016, the first deadline for the states under the Clean Power Plan. 

Under the Clean Power Plan, states were required to submit implementation plans to EPA by September 6, 2016, describing how they would meet their obligations under the Clean Power Plan, or request extensions to submit such plans.  Final state implementation plans were to be submitted to EPA by September 6, 2018.  EPA planned to implement a federal plan for those states that did not submit their own plans, or failed to get EPA approval of their plans.

As a practical matter, many states had already begun working on a path toward meeting the September 6, 2016 deadline in some fashion given the complexities of considering the best ways to achieve requirements under the Clean Power Plan.