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Carbon pollution controls put on hold

Dividing five to four, the Supreme Court on Tuesday evening ordered the Obama administration not to take any steps to carry out its “Clean Power Plan,” a move that may stall the plan until after the president leaves office next January.  The order — issued in identical form in individual responses to five separate challenges — will spare the operators of coal-fired power plants from having to do anything to begin planning for a shift to energy sources that the government considers to be cleaner. (An example of the five orders is this one, issued in a case filed by twenty-nine states.)

The plan, designed to make sharp reductions in carbon pollution from the smokestacks of generating plants fueled by fossil sources, is now under review by the U.S. Court of Appeals for the District of Columbia Circuit.   It has put the case on an expedited schedule, with a hearing set for June 2.  However, it may not finish its ruling until this fall, and then either side may try to move the case on to the Supreme Court.

The new orders will delay all parts of the plan, including all deadlines that would stretch on into 2030, until after the D.C. Circuit completes its review and the Supreme Court has finished, if the case does wind up there.  There appears to be little chance for those two stages of review to be over by the time President Obama’s term ends next January 20.

Justice Department lawyers had tried to persuade the Supreme Court not to impose any delay, noting that no state would have to file a plan to implement the policy until this September, and any plant would find it easy to get an extension of time to file such a plan until 2018.  The government lawyers also told the Court that actual implementation of the plan would not have to begin until 2022, and would have a final completion deadline of 2030.

The stretched-out schedule, the government argued, would mean that the plants affected by the plan would not have to do anything right away.

Operators of those plants, along with the coal industry and supporters in other businesses and industry, had countered that the operators would have to start making infrastructure investment plans right away, because of the lead time needed to switch to natural gas, or solar or wind power.  The operators had accused the administration of trying to set itself up as a national energy czar, managing the entire electric-generating economy from Washington.  The states who challenged the plan contended that the overall plan amounted to a serious intrusion into their right as sovereign powers over industry inside their borders.

While the five orders did not contain any explanation for the postponement, it seemed apparent that five Justices — the minimum number needed to take such action — found the challengers’ protests more convincing at this stage than the government’s attempt at giving assurances.

Only the votes of the four dissenting Justices were revealed in the orders — Stephen G. Breyer, Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.  That line-up meant, then, that the order had the approval of Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas.  (They were not mentioned in the orders, but the orders had to have had their support, given the number of dissenters.)

The fact that the ambitious carbon control plan had been developed by the U.S. Environmental Protection Agency may well have contributed to skepticism among some of the Justices about that agency’s arguments for avoiding a delay.  Justice Scalia is a particularly strong critic of the EPA.   The strong states’ rights arguments put before the Court by the twenty-nine states probably attracted the support of Justice Kennedy, a champion of the dignity of state governments.

While there has been one industry estimate that the plan, once in full effect, would lead to the closing of more than fifty coal-fired plants, EPA and the Justice Department’s lawyers disputed that estimate.

The Clean Power Plan, as the government has called it, was one of the major initiatives by the Obama administration as part of a larger policy of reducing the kind of air pollution that contributes to global warming and to severe changes in climate.

It has been as important to the president in the environmental context as has his broad plan in the immigration field to delay the deportation of upwards of four million immigrants who entered the country illegally but have no criminal records since living in the U.S.  The Supreme Court is preparing to hold a hearing in April on the immigration policy.

Although the challengers to the power plan had first made their plea for delay to the D.C. Circuit, that court turned them down, leading to the five filings at the Supreme Court.

The D.C. Circuit will review the plan before a three-judge panel but, once the panel has ruled, the case could be reheard by the full court of appeals before moving on to the Supreme Court.



Recommended Citation: Lyle Denniston, Carbon pollution controls put on hold, SCOTUSblog (Feb. 9, 2016, 6:45 PM),