Scalia’s Passing May Change Clean Power Plan’s Trajectory Once Again

Last week, in a 5-4 vote, the US Supreme Court took the extraordinary and unprecedented step of putting a hold on the Environmental Protection Agency’s Clean Power Plan rules pending the outcome of litigation at the DC Circuit Court. While the Court did not decide on the substantive issues, the mere issuance of a stay on implementation suggested to many observers that the five justices were inclined to strike down (at least in part) the rules intended to move local utilities away from coal-fired electricity generation.

Given the high bar for issuing a stay, this speculation seemed well-founded. To reach its conclusion, the Court needed to find that petitioners—in this case twenty-seven states; the US Chamber of Commerce; and a group of trade associations, utilities, coal companies, and mining interests—had shown: (1) there was a “reasonable probability” they will prevail on the merits; (2) they will suffer “irreparable harm” from the denial of a stay; and (3) the public interest favors a stay. And despite needing to meet all those factors, the Court issued the stay just nineteen days after the DC Circuit Court denied a similar stay request.

Over the weekend, the future of the Clean Power Plan has seemingly taken another unanticipated turn with the passing of Supreme Court Justice Antonin Scalia. Justice Scalia, the longest serving conservative on the Court, had joined the three other conservative justices and the perpetual swing vote, Justice Anthony Kennedy, in issuing the stay, and had shifted away from deferring to the EPA in recent years.

Although Scalia had narrowly interpreted the Clean Air Act (the enabling statute for the Clean Power Plan) before, resulting in broad deference to the EPA, authoring the majority opinion in the seminal case, Whitman v. American Trucking Associations (2001), his majority opinion earlier this year in Michigan v. EPA seemed to upend precedent on how the Court would defer (or not) to administrative agency expertise. And by joining four justices in inserting the Supreme Court into this yet-to-be-heard complex regulatory case on the Clean Power Plan, many were left questioning the precedent the Court was setting by taking this unique action.

Instead, now with one less conservative justice, the Supreme Court is positioned for a potential 4-4 split on the rules, pending the outcome of litigation at the lower court. Any 4-4 decision by the Supreme Court means the lower court decision would stand.

While there is no guarantee that the DC Circuit will uphold the Clean Power Plan, two of the three judges assigned to hear the case—Judith Rogers (a Clinton appointee) and Karen Henderson (a George H.W. Bush appointee)—have been deferential to the EPA in the past. And the third judge, Sri Srinivasan, is a recent Obama appointee and a potential Supreme Court nominee. So it’s quite plausible the DC Circuit will leave the Clean Power Plan intact.

And with eighteen states, a county, and several cities filing briefs in support of the EPA’s rules, along with a number of environmental and renewable trade association groups, the plan does have significant public and business support.

All of this bodes well for future climate mitigation efforts from the US power sector. More importantly, the rules—which are intended to reduce the power sector’s carbon emissions by encouraging states to increase energy efficiency and to develop more renewable electricity and natural gas—are also the cornerstone of the climate change commitment the United States agreed to in Paris earlier this year.

Despite the partisan litigation, as observers have noted the Clean Power Plan mostly codifies changes in the US power markets that are already taking place (a shift to more natural gas and renewable power). The rules are important for maintaining the domestic momentum towards a cleaner energy future that is already taking place.

The cost of wind power has declined 65.5 percent since 2009 according to the US Department of Energy, while solar power is now 73 percent less expensive than in 2006. As a result, many utilities, as well as corporate purchasers like Facebook, Google, IKEA, and others, are already making more renewable power purchases because they help their bottom lines, not just the environment.

So while the ultimate fate of nuances of the Clean Power Plan remain in doubt, the progress that the US renewable industries are making will continue to march on. And that’s good news for everyone.

[Note: The DC Circuit will hear oral arguments in West Virginia et al. v. EPA et al. on June 2, 2016.]