States Ask Supreme Court to Review Clean Power Plan Stay

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By Andrew Childers

Jan. 26 — The U.S. Supreme Court should reverse an appellate court and stay the implementation of the Environmental Protection Agency's Clean Power Plan because the carbon dioxide standards are likely to end up before the high court, 29 states and state agencies argued.

The states, led by West Virginia and Texas, argued in a Jan. 26 petition to the Supreme Court that legal issues presented by the Clean Power Plan are more pressing than those involved in the EPA's greenhouse gas permitting regulations or toxic pollutant standards for power plants, both of which the court reviewed. The Supreme Court should stay implementation of the EPA's carbon dioxide standards until those issues can be resolved, the states said.

“There is at least a fair probability that if the D.C. Circuit upholds the Power Plan, four Justices of this Court would vote to grant a petition for a writ of certiorari and at least a fair prospect that the court majority would declare the Plan unlawful,” the states argued.

The EPA's Clean Power Plan (RIN 2060-AR33) sets a carbon dioxide limit for the power sector in each state, which would be implemented by state regulators. The rule is being challenged by 27 states as well as several industry groups.

The U.S. Court of Appeals for the District of Columbia Circuit, which will hear the first challenges to the rule, denied petitions on Jan. 21 to stay the rule during the litigation (West Virginia v. EPA, D.C. Cir., No. 15-1363, order issued 1/21/16; 13 ECR, 1/21/16).

States Cite Parallels to Permitting Decision

The states linked the Clean Power Plan to the EPA's greenhouse gas permitting program, which was limited by the Supreme Court in 2014 (Util. Air Regulatory Grp. v. EPA, 2014 BL 172973, 78 ERC 1585, 34 S. Ct. 2427 (2014)).

In that decision, Justice Antonin Scalia had cautioned the EPA that “When an agency claims to discover in a long-extant statute an unheralded power to regulate ‘a significant portion of the American economy,' ... we typically greet its announcement with a measure of skepticism.”

The states argued that the Clean Power Plan represents a similar overreach on the part of the EPA.

“Just two years ago, this Court made clear in UARG that an agency cannot exercise significant and transformative power unless it has clear congressional authorization,” they said.

States and state agencies joining the petition are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, Wyoming, Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality, and Oklahoma Department of Environmental Quality.

“Given the wide-ranging impact of the Power Plan and its clear illegality, this case more than satisfies the stay factors concerning the likelihood that this Court would grant certiorari and reverse a decision of the D.C. Circuit upholding the Power Plan,” the states said.

To contact the reporter on this story: Andrew Childers in Washington at

To contact the editor responsible for this story: Larry Pearl at