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Tuesday’s other big news: Supreme Court stays Obama’s Clean Power Plan

Water cooler talk today is naturally, and justifiably, focused on the stunning New Hampshire primary victories of Donald Trump and Bernie Sanders. But another momentous piece of news that came out Tuesday evening should not be neglected: a divided Supreme Court stayed the Clean Power Plan, the Environmental Protection Agency (EPA) rule that is the centerpiece of the Obama administration’s climate plan. That means that no part of the plan, which the EPA formally finalized in October, will come into effect until after all of the legal challenges to it have been resolved.

If the Clean Power Plan is ever to become effective, the EPA will now have to win in the D.C. Circuit and then, it is safe to assume, at the Supreme Court. Even if expedited, that process will take enough time to push back the rule’s first deadline scheduled for September 2016. Most likely the Obama administration can no longer realistically hope to take responsibility for much of the plan’s implementation before it leaves office in January 2017.

The stay comes as a surprise, in large part because in its final rule the EPA delayed the effective date of the Clean Power Plan’s substantive emission reduction requirements until 2022 (back from 2020 in the original proposal). Commentators thought that delay was largely added to make it difficult for states bringing legal challenges to argue that they would be irreparably harmed by leaving the rule in place as the rule worked its way through the legal process, thereby rendering a stay unnecessary.

The D.C. Circuit bought that argument, but the five conservative justices of the Supreme Court did not. Their brief order does not elaborate on their thinking, but the result in another recent environmental case probably weighed heavily on their minds. Last summer, a divided Supreme Court decided in Michigan v. EPA that the EPA had been unreasonable in treating costs as irrelevant to its decision to regulate power plants’ emissions under a particular section of the Clean Air Act. The headline from the ever-reliable SCOTUSBlog: “Opinion analysis: Power plants stymie smokestack controls.” Except they hadn’t, because it turned out that having the Supreme Court hold that the procedure that produced the rule was fatally flawed was not enough to get the rule vacated: the D.C. Circuit ruled that, given the advanced state of implementation and the likelihood that EPA may have been able to justify it properly, simply leaving the rule in place was the appropriate course. As Michael Greve noted before Tuesday’s case, the state and industrial challengers to the Clean Power Plan pointed this out in the “Chief-they’re-laughing-at-you opening paragraph” of their request for a stay.

More generally, the Supreme Court’s granting of a stay comes as a major shock to those who thought that, at the end of the day, all of the talk of the Clean Power Plan’s legal defects would turn out to be a minor and passing distraction along the way to realizing America’s destiny as a global leader in tackling climate change. As I wrote back in August, that attitude did not ever make much sense: even with some modifications to make the final rule less tenuous than the proposed version, the Clean Power Plan still rested on some extremely creative—and many would say dubious—legal interpretations of the Clean Air Act. As a result, there have always been dark legal clouds hanging over the rule, and yesterday’s decision can be thought of as the first drizzle from them, making it harder to believe that they will simply blow over without incident.

That means advocates and policymakers committed to addressing climate change must shift their emphasis toward political sustainability. No climate policy is worth the paper it is printed on if it does not have political support broad and deep enough to withstand some buffeting. The chances that America could commit itself to a climate policy, not just for a single presidency but for many decades, without a clear congressional mandate to do so has always been hard to believe, and today it is harder. Pens and phones are nice, but they are no substitute for hard-won compromise forged in the messy politics of the legislature. That is not a message that our presidential candidates are eager to embrace, and not one that many Americans seem to want to hear—up to and including members of Congress themselves! But, inconvenient as it may be, it is loud and clear enough for those willing to face up to recent developments.

Author

Philip A. Wallach

Senior Fellow - R Street Institute

Former Expert - Brookings Institution

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