The Obama administration is asking the US Supreme Court to reject a request by 27 states to initially allow them to put off complying with the Clean Power Plan — a step toward eventually wiping out the rule altogether. The White House is fairly confident in its pitch, with legal onlookers noting that it has already has racked up a pretty good track record with the High Court.
In this particular case, the president and his team have precedence on their side: In January, the DC Court Appeals denied a motion by the states that oppose the Clean Power Plan to grant them a “stay” until a definitive ruling could be handed down. While not a victory over the true merits of the regulation, it was nonetheless a victory — one that keeps up the momentum toward carbon reductions.
Not to be deterred, though, the states, led by West Virginia whose economy depends on coal, then turned to the Supremes to ask those justices for a temporary break, until the matter is ultimately settled. That’s a move that even those opponents say is non-traditional, implying that it is a “Hail Mary.”
“The relief that the applicants request would be extraordinary and unprecedented, and their applications should be denied,” writes Solicitor General Verrilli, in his brief to the justices, on Thursday. “Applicants seek a stay before any court has expressed a view about, let alone rendered a final decision concerning, the merits of their legal claims.”
In August 2015, the Obama administration finalized its Clean Power Plan, which would require a 32 percent cut in carbon dioxide emissions by 2030. The states will have flexibility and will need to submit their blueprints for how they plan to comply by 2016. By 2022, they need to start the implementation.
The states have a number of options open to them that include having their utilities change-out their coal-fired plants or trading carbon credits as they do in the Northeast and in California. However, if the states do not draw up their up proposals, the EPA will do so for them. And this is not something that either utilities or the major industrials would want.
Arizona, for example, has joined the lawsuit to have the Clean Power Plan thrown out. But it is simultaneously figuring out how it will comply — a two-track process. The utilities there, along with the manufacturers, would rather work with their state regulators than with federal regulators, if they must.
What are the odds of the 27 states being successful when it comes to the Supreme Court — especially the big one to have the Clean Power Plan tossed? The suits allege that the Environmental Protection Agency does not have the authority to oversee the law under the specific provisions of the Clean Air Act in which they were written.