The Environmental Protection Agency cannot implement the Clean Power Plan while a Supreme Court-issued stay of the rule is in place, on that much everyone can agree. When it comes to what else the EPA can or cannot be under the stay, opinions are varied. Those opposed to the rule argue that EPA and states should halt all work related to the rule while EPA and its supporters argue that it can do just about everything but implement the rule.
The topic was broached, not for the first time, at a Thursday morning hearing of the House Science Space and Technology Subcommittee on Environment. “Despite the Supreme Court’s stay of the rule, and despite the fact that this plan is in litigation, the EPA had been moving forward with a regulatory structure to implement the Clean Power Plan. This is outrageous. It is wrong, and I find these actions by the EPA unacceptable,” subcommittee chairman Jim Bridenstine (R-Okla.) said.
The Supreme Court in a February 5-4 decisions granted a stay of the regulation, which is currently being challenged in court by 27 states and numerous stakeholders. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan voted against the stay while Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, Samuel Alito, and Chief Justice John Roberts voted to approve the hold. Scalia died unexpectedly days later.
The stay halts implementation of the regulation until the challenges to the rule are decided by the D.C. Circuit Court of Appeals and any Supreme Court appeals are concluded. The Clean Power Plan requires states to develop action plans to meet federally set state-specific carbon emissions reduction goals
EPA, while making clear that it will not implement the rule with the stay is in place, has continued work on programs connected to the Clean Power Plan. One such program is the Clean Energy Incentive Program, a voluntary program in which states would receive emissions rate credits or allowances to promote early investments in wind, solar, and demand-side energy efficiency for low-income communities in 2020 and 2021.
EPA has also offered to continue to work with states that choose to proceed with developing their action plans during the stay.
Bridenstine and Oklahoma Attorney General Scott Pruitt argue that EPA should not do anything related to the Clean Power Plan during the stay. “That stay was entered because five members of the court thought that this plan, this Clean Power Plan, was unlawful, and those five members were correct,” Pruitt said.
The other side of the argument notes that the Supreme Court issued a stay, not an injunction of the rule. “That may seem like technical legal jargon, but it’s actually quite important from a legal perspective,” Brianne Gorod, chief counsel at the Constitutional Accountability Center, said.
According to Gorod, a stay only directs the implementation of the rule, which an injunction directs the actions of an agency. “There is – because this was just a stay and not an injunction – ample precedent for the EPA to be doing exactly what it is doing now, which is continuing to work on matters related to the rule without imposing any regulatory requirements on the states,” she said.
The suit against the rule is currently waiting for oral arguments at the U.S. Court of Appeals for the D.C. Circuit. In a surprise move last week – neither party had requested it – the court ordered that the case be heard by the full panel of judges. Oral arguments had been scheduled for June 2 in front of a three-judge panel. In ordering the “en banc” review, the court rescheduled arguments to Sept. 27 at which time they will be heard by a panel of nine judges.