States, industry ask chief justice Roberts to stay Clean Power Plan

Opponents of the Obama administration’s effort to drive reductions in carbon dioxide pollution by power plants want the U.S. Supreme Court to block the Clean Power Plan while an appeals court considers the rules on their merits.

At least three petitions have been filed with chief justice John G. Roberts, Jr., who oversees the U.S. Court of Appeals for the District of Columbia Circuit. The first is by 29 states and state agencies and the second is by a coalition of electric utility companies and other entities. A third, by the coal industry, has also been filed.

Roberts can decide by himself whether to grant the stay petition or refer it to the whole court. Under both a provision of the Administrative Procedure Act and a statute called the All Writs Act, agency regulations may be temporarily blocked while a federal court considers challenges to them.

The question whether to grant a stay is not one that Roberts or the entirety of the court can decide on a whim. Instead, there is a specific standard, which the court explained in a 2010 decision:

To obtain a stay pending the filing and disposition of a petition for a writ of certiorari,an applicant must show (1) a reasonable probability that four

Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay. In close cases the Circuit Justice or the Court will balance the equities and weigh the relative harms to the applicant and to the respondent.

It is the “irreparable harm” part of the standard that prevented acquisition of a stay in the D.C. Circuit. States have six years, considering extensions authorized by the rule, to comply with it and have the option to leave the question of developing a plan specific to the power plants within their borders to the U.S. Environmental Protection Agency.

As for the “equities,” Roberts or the court would likely have to consider the reality that ongoing greenhouse gas emissions from the utility sector, which is the largest source of them in the U.S. economy, will worsen human-driven climate change.

If a stay is granted, the Clean Power Plan would be put on hold until after the D.C. Circuit rules. Even with the expedited briefing and argument schedule that court has ordered, a decision may not come until this autumn or even in 2017. That would likely mean delays past the early 2020s in reducing greenhouse gas emissions from power plants, even if the Clean Power Plan is ultimately upheld.

Roberts ordered EPA to respond to the petitions for a stay of the Clean Power Plan by Feb. 4.

The U.S. Supreme Court file number is 15-A-773.