On 9 February, in a familiar sequence of events, the US Supreme Court stayed enforcement of president Obama's Clean Power Plan until lawsuits from 27 states are resolved. In a 5-4 decision the justices overruled a January federal appeals court decision that denied a stay of the rule.
"Although yesterday's decision is not a final decision on the lawfulness of the Clean Power Plan, it's certainly an indication that at least five Justices are concerned that EPA has overstepped its legal authority," said Jeff Holmstead, partner at Bracewell Law and former assistant administrator of the U.S. Environmental Protection Agency for Air and Radiation. This is a reference to the main challenge by the 27 states - that EPA has no authority to regulate greenhouse gas emissions from power plants under Section 111(d) of the Clean Air Act, because emissions are already regulated under Section 112.
He further commented "I also think the justices were aware of what happened in the MATS [Mercury and Air Toxics Standards] case. By the time the case reached the Supreme Court, the power sector had already been forced to spend tens of billions of dollars to comply with MATS - and the Court's decision came too late to save dozens of coal-fired plants that shut down because they couldn't afford the cost of the rule."
This is a pointer to the true concerns of opponents of the Plan, and perhaps the Supreme Court too, namely the cost to industry. MATS was effectively neutered in the Supreme Court in 2015, not because the EPA had no right to regulate mercury emissions, or because its Rule was in itself unlawful, but because it 'did not interpret the Clean Air Act correctly when it failed to include costs when it decided that the regulations were appropriate and necessary'.
The appeals court is not likely to issue a ruling on the legality of the plan until after it hears oral arguments, which begin on 2 June. Any decision will more than likely be appealed to the Supreme Court, so a final decision may not come until after president Obama leaves office.
The Clean Power Plan calls for states to cut carbon dioxide emissions 32 % below 2005 levels by 2030 and as the rule stands states have until 2018 to submit compliance plans to the EPA or request an extension.
Opinions on the meaning and effect of the Supreme Court decision are more or less in line with the vested interests of those expressing them. The American Wind Energy Association and the Sierra Club are confident that the Clean Power Plan has not been overturned, only delayed. But Mike Duncan, president and CEO of the American Coalition for Clean Coal Electricity, said the ruling was a positive step for the industry. "We are pleased the Supreme Court took this unprecedented step to protect the states from further economic harm while the courts are deciding whether the administration's Power Plan is unlawful and unconstitutional," Duncan said. "The stay is a signal the Supreme Court has serious concerns with the Power Plan. We're optimistic the Power Plan will ultimately be rejected."
The American Public Power Association was also supportive of the Supreme Court's decision, suggesting that the Clean Power Plan would result in 'broad and transformative changes to the electricity industry' citing uncertainties in the programme and 'the costs to consumers'.
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