Court’s stay decision compared to Bush v. Gore

Source: Robin Bravender, E&E reporter • Posted: Thursday, February 11, 2016

Supporters of the Obama administration’s Clean Power Plan are pointing to political motives behind the Supreme Court’s decision to block the rule.

After the justices yesterday decided 5-4 to block U.S. EPA’s top effort to limit power plants’ greenhouse gas emissions, several disappointed agency supporters today compared the court’s move to its decision in the Bush v. Gore case. That divided opinion in late 2000 paved the way for George W. Bush to become president.

Politics were “totally, indisputably, absolutely” in play when the court issued the stay, Sen. Sheldon Whitehouse (D-R.I.) said today at an event about climate change legal issues. “This, Bush v. Gore and Citizens United are the three big stinkers right now of a highly politicized group of five Republican appointees.” The Citizens United v. Federal Election Commission decision changed rules that limited political spending.

Richard Ayres, a founding partner of the Ayres Law Group LLP and co-founder of the Natural Resources Defense Council, called the court’s move to stall the Clean Power Plan “an extraordinary and unusual step.” It’s “on par with perhaps Bush v. Gore, where the court is stepping into a controversy before it lets the lower courts make a decision and try to put its thumb on the scale,” he added.

“This is the first time in the history of the Supreme Court that they have ever granted a stay before a lower court even had a chance to rule on the merits of the case,” Ayres said at the event hosted by the American Constitution Society in Washington, D.C.

Vermont Law School professor Pat Parenteau called the decision “right up there with Bush v. Gore” in an interview. Parenteau, a supporter of the climate rule, said the court’s decision to strike down the rule “underscores the incredible importance” of the presidential election. “There’s almost certainly going to be one, two or probably three [Supreme Court appointments] in the next eight years,” he said.

Vickie Patton, general counsel for the Environmental Defense Fund, noted during an American Bar Association event today that the Supreme Court took far less time to consider the stay requests than a lower court had. The U.S. Court of Appeals for the District of Columbia Circuit rejected requests by states and companies to block the rule while litigation played out.

“There was two months of briefing over the stay motions in the D.C. Circuit, followed by about a month of careful deliberations by the D.C. Circuit preceding its decision to deny the state motions,” Patton said. “The timing before the high court was quite different. The petitioners filing the applications for a stay with the Supreme Court filed their applications on Friday and the court issued its order at 6 p.m., 6:30 [yesterday] evening, during the New Hampshire presidential primary.”

Opponents saw ‘strong signals’ from court

While the stay surprised environmental attorneys, one of the lawyers leading the charge against the Clean Power Plan said the court had signaled it might have an appetite for their arguments.

“In a number of recent decisions over the years, the Supreme Court has sent some strong signals that a majority of the court was likely to be skeptical of the approach in the Clean Power Plan,” said Roger Martella, an attorney at Sidley Austin LLP who’s representing business groups in the litigation over the rule.

He pointed to a recent decision striking down part of EPA’s approach for regulating greenhouse gas emissions for stationary sources and the court’s opinion in the lawsuit challenging the Obama administration’s health care law. In the health care case, the court signaled that it may be less inclined to defer to agencies when it comes to significant rulemakings.

“So the fact that the court might be skeptical of it perhaps was not a big surprise,” Martella said at the American Constitution Society event.

The court’s five conservative justices issued the stay yesterday despite the dissent of the court’s liberal wing.

Reporter Amanda Reilly contributed.