Obama's Climate Change Rules Suffer Supreme Court Setback

by | February 10, 2016

By David G. Savage

The Supreme Court dealt a surprising setback to President Barack Obama on Tuesday by putting his climate change policy on hold while coal producers and Republican-led states challenge its legality.

The justices, by a 5-4 vote, issued an unusual emergency order that blocks the Environmental Protection Agency from moving forward with its effort to reduce carbon pollution from power plants by 32 percent by 2030.

The court's order said the EPA's "carbon pollution emission guidelines" for power plants are "stayed pending" a decision from the U.S. Court of Appeals in Washington, which will hear the case this summer.

It is rare for the high court to intervene in a case pending in the lower courts. The brief order suggests that most of the justices have doubts about the legality of the EPA's policy.

The court's order could also be a sign that conservative justices are increasingly skeptical of President Obama's use of executive authority.

In a separate case this term, the high court will decide whether Obama went too far in issuing an executive action to defer deportation of more than 4 million immigrants here illegally.

Chief Justice John G. Roberts and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel Alito joined in support of the order.

The court four liberal justices dissented. They are Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

A former Justice Department attorney who has worked on environmental litigation called Tuesday's order significant.

It is "extraordinary and fairly surprising," said Washington lawyer James Rubin. "The court essentially reviewed the merits before the D.C. Circuit even had a chance to rule on them, something the court has not done before in the context of rule-making challenge. It's a significant blow to the EPA and the administration's climate change plan."

Known as the Clean Power Plan, the EPA regulations would set state-by-state targets for reducing greenhouse gases from power plants. The rules would force many states to shut down older coal-fired plants and to produce more electricity using natural gas or solar and wind power.

Lawyers for West Virginia, Texas and 24 states sued, contending the EPA does not have the authority under the Clean Air Act to launch a broad attack on greenhouse gases.

They filed an emergency appeal at the end of January asking for the high court to put the EPA plan on hold while their lawsuit proceeds.

The challengers reminded the justices that they ruled last year in a separate case that the EPA had failed to weigh the $9 billion cost before requiring power plants to eliminate mercury emissions. But because the high court had allowed the rules to take effect while the legal challenge went forward, by the time the industry won it was too late because the power plants had already complied. Their message was that the high court this time needed to intervene early.

The appeals court said it would hear arguments in June for the climate case, and would probably rule in the fall, during Obama's last months in the White House.

"Make no mistake: This is a great victory for West Virginia," said the state's attorney general, Patrick Morrisey. "We are thrilled that the Supreme Court realized the rule's immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues." West Virginia and Texas led the coalition of states challenging the EPA regulations.

The National Rural Electric Cooperative Association, one of several groups that joined the challenge, applauded the court's move.

"Charging ahead with implementation of the Clean Power Plan would have caused immediate and irreparable harm to America's electric co-ops," said Jeffrey Connor, the group's interim CEO.

The president's order had urged the justices to turn down the emergency request, calling it "extraordinary and unprecedented." Meanwhile, 18 mostly Democratic-led states filed a brief supporting the administration.

The Environmental Defense Fund expressed disappointment.

"Today's court decision is unfortunate, but it does not reflect a decision on the merits," said Vickie Patton, its general counsel. She said she was confident the courts would ultimately uphold the EPA plan.

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