On Oct. 16, the U.S. Supreme Court rejected an attempt to block the implementation of the U.S. Environmental Protection Agency’s (EPA’s) latest effort to curb greenhouse gas emissions (GHG) from power plants while the EPA is being challenged in pending court proceedings, but three justices indicated they had concerns with the rule’s legality.
Background
The Oct. 16 order arises out the emergency stay applications filed by multiple Republican-led states, utility and coal industry groups after the D.C. Circuit Court rejected their stay bids in July. These parties had argued to the D.C. Circuit Court that the EPA’s final rule unlawfully mandates a shift away from fossil fuel-fired power plants and the justices should block it just as they had blocked the EPA’s previous attempt at reducing power plant GHG emissions known as the Clean Power Plan. In 2022’s West Virginia v. EPA, the U.S. Supreme Court eventually ruled that the Clean Power Plan exceeded the EPA’s Clean Air Act authority.
Justice Clarence Thomas included in the order that he would have granted the stay applications. Justices Brett Kavanaugh and Neil Gorsuch indicated they respected the stay denial, but that the challengers were likely to succeed with at least some of their legal arguments against the EPA’s rule.
Per Justice Kavanaugh: “In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency’s rule. But because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits.”
Latest Rule
Under the EPA’s latest rule, published in the Federal Register in May, coal-fired power plants expected to operate past 2039 have until 2032 to meet a carbon dioxide emissions standard equal to what they would achieve if they installed carbon capture and sequestration technology, and ran it at 90% efficiency. Plants that will never meet that standard must be retired by 2039.
In their emergency stay applications, the applicants argued that they are likely to succeed in their argument that the EPA is cloaking an unlawful push to retire fossil fuel-fired plants with the erroneous determination that power plants could meet the EPA new GHG rule’s reduction goals and deadlines by installing carbon capture and sequestration systems.
In urging the U.S. Supreme Court to reject the stay applications, the EPA argued that the EPA acted within its authority to develop the new GHG rule. The EPA additionally asserted the applicants’ challengers failed to show the irreparable harm that would merit a stay of the rule, given that power plants do not need to comply with the standards until as early as 2030 and that the D.C. Circuit has already put the judicial challenges to the rule on an accelerated timeline.
Consequently, applicants' challenge will need to await the D.C. Circuit Court final decision, and if warranted, attempt to seek relief from the U.S. Supreme Court again at a future date.
This article originally appeared on Goldberg Segalla.
About the Author:
Larry D. Mason is a partner at Goldberg Segalla.