Governors' Wind Energy Coalition

A coalition of states led by West Virginia is asking the Supreme Court to block the Obama administration’s signature climate change rule after a lower court refused to do so.

In their petition asking the high court to stay U.S. EPA’s Clean Power Plan, the states warn that if the high court does not freeze the rule to limit power plants’ greenhouse gases, it “will continue to unlawfully impose massive and irreparable harms upon the sovereign States, as well as irreversible changes in the energy markets.”

The U.S. Court of Appeals for the District of Columbia Circuit last week issued an order refusing a request by states, industry groups and others that had urged the court to block the rule while litigation plays out.

“Petitioners have not satisfied the stringent requirements for a stay pending court review,” the D.C. Circuit said last Thursday. That court announced it would hear the case on an expedited schedule (E&ENews PM, Jan. 21).

“While we know a stay request to the Supreme Court isn’t typical at this stage of the proceedings, we must pursue this option to mitigate further damage from this rule,” West Virginia Attorney General Patrick Morrisey (R) said in a statement. “Real people are hurting in West Virginia and it’s my job to fight for them.”

The states and agencies that signed on to the petition with West Virginia are Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin, Wyoming, the Mississippi Department of Environmental Quality, the Mississippi Public Service Commission, the North Carolina Department of Environmental Quality and the Oklahoma Department of Environmental Quality.

Some legal observers see the appeal to the high court as a long shot, given that the D.C. Circuit just weighed in on the issue and will weigh in later this year on the merits of the case.

“A stay by the Supreme Court at this stage of an appeals court case would be even more unusual than a stay from the appeals court itself,” said Natural Resources Defense Council attorney David Doniger. “We are hopeful this will be quickly denied.”

The case is widely expected to wind up in the Supreme Court.

The state petition says, “Given the wide-ranging impact of the Power Plan and its clear illegality, this case more than satisfies the stay factors concerning the likelihood that this Court would grant certiorari and reverse a decision of the D.C. Circuit upholding the Power Plan.”

Click here to read the states’ petition.