In blocking EPA Clean Power Plan, is the Supreme Court wading deeper into politics?

Speaking at a law school last week, Chief Justice John Roberts complained that sharp partisan criticisms of the Supreme Court have led the public to believe that it is just another political branch of government.

However, the Chief Justice may have reinforced the impression that the Court plays politics when he joined four other Justices on February 9 in granting an extraordinary stay of one of the most important regulations the U.S. Environmental Protection Agency (EPA) has ever issued.

The Supreme Court shocked all legal observers by prohibiting EPA’s Clean Power Plan from remaining in effect while a lower court hears legal challenges to it.

This is the first time ever that the Supreme Court has intervened to stay, or temporarily block, an agency’s regulation before a court has heard legal challenges to it. The Court’s action is particularly surprisingly because just weeks before, the lower court judges who will hear these challenges had unanimously rejected a motion for a stay, while expediting consideration of the case.

The effect of the stay will be immediate in slowing the development of state energy plans and raising doubts in other countries about the U.S. commitment to fight climate change. More broadly, this case may be seen a prime example of a partisan Supreme Court considering politics rather than strictly legal questions.

SCOTUS retains final word

EPA’s Clean Power Plan (CPP) is a key part of the Obama administration’s efforts to reduce U.S. greenhouse gas (GHG) emissions, as promised at the global summit held in Paris last December.

The CPP gives states the option of developing plans to reduce GHG emissions from power plants or letting EPA develop the plans for them. EPA issued the regulations only after considering more than 4.3 million public comments and holding hundreds of meetings with stakeholders, the most public input it has ever received in making a rule.

The agency estimates that the regulations will reduce GHG emissions by 870 million tons, or 32% below 2005 levels by 2030 when full compliance is required.

Long before the regulations were even issued, however, opponents in the coal and utility industries joined red state officials in waging an unprecedented campaign against EPA. They filed lawsuits making a host of wild claims, including that President Obama was “burning the constitution,” and asked courts to stop EPA from issuing the regulations.

The courts unanimously rejected these lawsuits and told opponents that the law clearly required them to wait until EPA finished its rule.

Meanwhile EPA listened carefully to the unprecedented number of public comments it received on its proposal. Indeed, the final rule was substantially modified to address concerns raised during the comment period. States were given more time to comply with the rules and the most controversial portions of the rules relating to demand-side energy efficiency improvements were eliminated.

After the rules were issued in final form, a new round of legal challenges were filed in the D.C. Circuit. On January 21 the court unanimously rejected the opponents’ motion to stay the rules pending completion of the legal proceedings.

When EPA’s litigious opponents then announced that they would seek a stay from the U.S. Supreme Court, no one – not even the opponents themselves – thought that the Court would grant the request. But by a 5-4 vote the Court did exactly that.

The orders issued by the Court stay the rule not only until the D.C. Circuit issues its decision, but also until the Supreme Court completes any subsequent review of the rule.

In other words, even if the D.C. Circuit rejects the legal challenges it will hear, the rule still cannot take effect until the Supreme Court acts. Because it takes only four votes to grant Supreme Court review, it is certain that the Court will review the case regardless of which way the D.C. Circuit rules.

Stay not based on merits

The only precedent for the Court’s extraordinary action that comes to mind is Bush v. Gore. There the Court’s five most conservative members directed the state of Florida to halt its vote recount in the 2000 presidential election.

The Court then declared George W. Bush to be the winner of Florida’s electoral votes, giving him one more than needed to win the presidency even though Gore received 540,000 more popular votes than Bush.

Bush v. Gore made the Court appear to be nakedly political and the five Justices who personally favored Bush were accused of inventing a novel legal theory to make their favored candidate president.

Opponents of EPA are crowing with one commentary saying that due to the Court’s stay “the Clean Power Plan is dead and will not be resurrected.”

Not so fast. Unlike Bush v. Gore, the Supreme Court’s stay of the CPP is not a decision on the merits of the rule. I believe the D.C. Circuit, which will hear oral argument on June 2, will uphold the regulations. The Supreme Court then will review the D.C. Circuit’s decision.

A previous case on EPA regulations of mercury from power plants may have prompted the Supreme Court to stop implementation of the Clean Power Plant before determining its legality.haglundc/flickr, CC BY-NC

One of the legal criteria for a stay is the likelihood of success on the merits. Therefore, the Court’s five most conservative Justices believe the legal arguments made by EPA’s opponents carry weight. But this does not guarantee that they all ultimately will vote against EPA.

The Supreme Court archives reveal that four decades ago the sole fierce conservative on the Court at the time – Justice Rehnquist – momentarily persuaded his colleagues to gut the new Endangered Species Act without even hearing oral argument. But because the majority could not agree on a single rationale for doing so, the Court ultimately agreed to hear oral argument. After the Justices closely examined the law during the argument, three votes switched and the law was upheld in the landmark snail darter decision. History could repeat itself.

Another criterion for granting a stay is the likelihood of irreparable harm. EPA’s opponents argued that the rule would force coal-fired power plants to close before the legality of the Clean Power Plan could be determined. However, the rule’s first compliance date is not until 2022. As a result, any plant closing while the legal challenges are pending would be done for independent, economic reasons – not because of the CPP.

Opponents of the Clean Power Plan also cleverly argued that the Court’s decision last June in another case involving the EPA made a stay necessary.

In the Michigan v. EPA case, the Supreme Court found that EPA should have considered costs before regulating mercury emissions. But its ruling had little impact because the regulation had not been stayed. Most power plants already were complying with the mercury controls and EPA could quickly correct its supposed legal error by issuing a new cost determination.

Out of Obama’s hands

What might the Supreme Court actually rule when it considers the Clean Power Plan?

The Court repeatedly has confirmed EPA’s authority to use the Clean Air Act to regulate greenhouse gas emissions, but its shocking stay of the CPP indicates that it eventually may deprive EPA of its most effective tool for doing so.

Even if the CPP ultimately survives judicial review, the stay inevitably will delay some state efforts to develop plans to develop plans to reduce greenhouse gas emissions, which the rule requires. While this will not entirely halt the ongoing adoption of cleaner energy sources that is occurring in the U.S., it sends an unfortunate signal to the rest of the world that, after the Paris Agreement on climate change, now views the U.S. as a global leader in responding to climate change.

The stay also guarantees that the CPP will not go into effect until after President Obama leaves office, placing the rule’s ultimate fate in the hands of a new administration.

The administration ushered into office by Bush v. Gore stalled for nearly a decade U.S. efforts to address climate change. This could happen again if the new president is a climate change denier.

Bush v. Gore seriously damaged the Court’s reputation by making it appear to be a political branch of government. Whenever the Court splits 5-4 along ideological lines, such suspicions may arise. But the truly extraordinary nature of the Court’s 5-4 stay of the CPP strongly suggests that the Court’s five conservatives are embracing politicians’ anti-EPA rhetoric before carefully considering the law.

Robert Percival does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond the academic appointment above.