In somewhat of a surprise, the Supreme Court on Wednesday (Oct. 16) refused a power and coal industry emergency petition to stay a Biden administration’s Environmental Protection Agency rule to reduce power plant carbon dioxide emissions.
The 2023 EPA rule, now under challenge at the U.S. Court of Appeals for the D.C. Circuit, would have required coal and gas fueled power plants to reduce CO2 emissions by 90%, using carbon capture and storage technology or, in the case of gas plants, burning “clean” hydrogen to reduce emissions. Accompanying the plan, the Biden administration’s Inflation Reduction Act also includes tax benefits for employing those technologies.
At the time, critics not only from industry but from some clean air advocates argued that neither carbon capture nor the colorful hydrogen fuel were close to practical substitutions for existing fossil fuels. EPA in February delayed the gas-fired component of the rules.
The D.C. appeals court earlier rejected an industry petition to stay the EPA rule. The 20 Republican states, led by West Virginia Attorney General Patrick Morrisey, who appeal to the appeals court then moved their appeal to the Supreme Court’s emergency docket. Republican Morrisey is almost certain to be elected governor in November, replacing Republican Gov. Jim Justice, who is almost certain to be elected to the U.S. Senate at the same time.
Morrisey led the same group of states that in 2022 successfully challenged the Obama administration’s 2015 Clean Power Plan. That case, West Virginia v. EPA (597 U.S. 697), led the high court to invent the “major question” doctrine, a jurisdictional pretext for Republican judicial activism. The court quickly followed with the destruction of Chevron deference, another, even stronger, expression of judicial activism.
Among those joining the states seeking a stay of the Biden administration power plant rules were the Edison Electric Institute, the National Rural Electric Cooperative Association, and the National Mining Association.
The EPA opponents needed four justices to support the stay request. They got one: Justice Clarence Thomas. Justice Samuel Alito did not participate, without explanation. The reason may be that, as Bloomberg reported, he owns stock in investor-owned utility Oklahoma Gas & Electric, which is involved in the case.
The Washington Post headlined its story “Supreme Court clears way for Biden’s plan to cut power plant emissions,” an interpretation taken by several other publications.
That interpretation is wrong. The decision to duck a stay is a subtle move by two of the younger and politically savvier justices to avoid a needless issue in a nationwide election year. That’s clearly what’s behind the explanation by Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, for denying the emergency stay application. The guts of their analysis is that there is no emergency and no need to ignite a political fire.
If anybody turns this into a political issue, they argue, it won’t be before Nov. 5 and it will be the D.C. appeals court that sets the agenda.
Kavanaugh wrote that “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.” He then added, “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. So this Court understandably denies the stay applications for now.”
Kavanaugh continues, “Given that the D. C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D. C. Circuit decides the case, the nonprevailing parties could, if circumstances warrant, seek appropriate relief in this Court pending this Court’s disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case.”
The Post and other media outlets tied the power plant decision to two other SCOTUS rejections this month of stays on the emergency docket: air toxics and methane emissions, both before the D.C. Circuit, suggesting some sort of softening toward environmental regulations. There were no comments from any of the justices on those cases.
A victory for the Biden administration and softening of the court’s hardline view of environmental regulation? Hardly. The court has booted these political cans down the road, into a new and different administration. It isn’t about the substance of any of the disputed regulations.
–Kennedy Maize
To comment: