EPA urges Supreme Court to deny ‘unprecedented’ request

Source: Robin Bravender, E&E reporter • Posted: Friday, February 5, 2016

The Obama administration yesterday urged the Supreme Court to reject a bid to halt U.S. EPA’s Clean Power Plan, calling the appeal to the high court “extraordinary and unprecedented.”

In a document sent to the high court, the administration’s solicitor general, Donald Verrilli, ticked off a number of arguments as to why the justices shouldn’t step in to freeze the regulation aimed at slashing power plants’ greenhouse gas emissions.

Notably, Verrilli said, the case is still pending in a lower court. The U.S. Court of Appeals for the District of Columbia Circuit declined to stay the rule and will soon delve into the merits of the case.

The Supreme Court’s “traditional reluctance to address novel legal arguments in the first instance — without the benefit of any sustained analysis by a lower court — weighs strongly against intervention at this time,” Verrilli said. “Applicants identify no case in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals.”

The D.C. Circuit’s decision not to freeze the rule was correct, Verrilli added. “Applicants are not entitled to relief under the traditional stay factors,” he wrote. He said opponents of the rule couldn’t show that they would likely win on the merits of the case and hadn’t shown that they will suffer “irreparable harm” while the case proceeds on an expedited schedule in the lower court.

Finally, he said, “applicants’ proposed stay would disserve the public interest. A stay that delays all of the rule’s deadlines would postpone reductions in greenhouse gas emissions and thus contribute to the problem of global climate change even if the rule is ultimately sustained.”

The administration’s response was filed after 27 states and many industry groups asked Chief Justice John Roberts to intervene to block the rule. Roberts had asked EPA to respond by today, and he may issue a decision on his own or consult his colleagues. Lawyers on both sides of the issue are expecting the court to weigh in promptly; a response could come from the court at any time.

The state opponents of the rule are planning to file a reply tomorrow, Oklahoma Attorney General Scott Pruitt (R) told reporters yesterday. Oklahoma is one of the 27 states asking the Supreme Court to stay the rule (Greenwire, Feb. 3).

EPA allies warn stay would hurt public interest, foreign policy

Meanwhile, the states and other groups backing EPA in the lower court lawsuit also urged the high court to keep the rule in place.

The states opposed to the EPA rule “have failed to demonstrate that they will suffer any irreparable injury before the court of appeals rules on the merits of their claims below,” a coalition of 18 states and other regions supporting the rule told the high court.

The response backing EPA was filed by New York, California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Hampshire, New Mexico, Oregon, Rhode Island, Vermont, Virginia, Washington, the District of Columbia, and Broward County, Fla. The cities of Boulder, Chicago, New York, Philadelphia and South Miami also signed on.

They added, “The harms of climate change that the rule is designed to mitigate are lasting and irreversible. Any stay that results in further delay in emission reductions would compound the harms that climate change is already causing.”

Green groups, utilities and renewable energy advocates also pressed the high court to reject the stay request today.

“[P]ostponing deadlines for compliance beyond 2022 would further delay vital reductions in the largest source of the carbon pollution driving current and future climate change impacts that gravely endanger public health and welfare,” the groups told the justices today.

And, they added, “Staying the Rule also would undermine the important U.S. foreign policy objective of galvanizing global efforts to curb climate-changing carbon pollution.” The Clean Power Plan, the groups added, is the “central element” of domestic climate policy and “was critical to achieving serious action commitments from more than 190 nations that adopted the Paris Climate Agreement in December 2015.”

Click here to read EPA’s response.

Click here to read the states’ response.

Click here to read environmentalists’ and pro-EPA business groups’ response.