States, industries make final pleas to Supreme Court

By Robin Bravender, E & E News, February 8, 2016

Dozens of states, utilities and coal groups Friday made their final arguments in an attempt to urge the Supreme Court to block the Obama administration’s Clean Power Plan.

The request to the court to step in and block the controversial rule as a lower court weighs the case is widely seen as an unusual legal maneuver, but that shouldn’t stop the court from taking action, a coalition of more than two dozen states led by West Virginia said in its filing to the justices.

“To be sure, requests of this Court for a stay of agency action pending review in the court of appeals appear to be rare. The States have not identified any case ‘in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals,'” the states’ attorneys wrote.

Litigation over the rule is still pending before the U.S. Court of Appeals for the District of Columbia Circuit. Judges on that court refused requests to block the rule while the case proceeds.

However, the states said, “EPA and its intervenors have not identified a single instance where this Court has rejected such a request. Critically, there is nothing to suggest that the scarce precedent reflects anything more than that the circumstances rarely warrant the time and expense of seeking such a stay from this Court.”

The states added that “the Power Plan is the most far-reaching and burdensome rule EPA has ever forced onto the States.”

In a separate document to the court, utility groups responded to EPA’s claims that a stay would be “extraordinary.” This is “not an ordinary case. Never before has EPA claimed such sweeping authority to reorganize an entire sector of the economy in the name of reducing emissions,” the groups said.

And coal industry groups warned the court that those seeking a stay will suffer from “irreparable harm” if the rule is allowed to go forward (see related story).

“Concrete evidence shows many examples of closures attributable to the Power Plan, as well as examples of long-term planning by utilities, which are currently making plant shut-down and resource decisions that will be implemented or made permanent in 2016.”

Supreme Court Chief Justice John Roberts is weighing the arguments from both sides and is expected to issue a reply soon. He could act on his own or consult with his colleagues before deciding whether to grant a stay.

Click here to read the states’ reply.

Click here to read coal industry groups’ reply.

Click here to read utilities’ reply.

Click here to read business groups’ reply.