Last night, while everyone was focused on New Hampshire, the Supreme Court issued an order that is likely to end up being more consequential than the primary victories of Donald Trump and Bernie Sanders: By a vote of 5–4, it stayed the implementation of the so‐called Clean Power Plan. A group of states led by West Virginia challenged the regulation, and eventually sought a stay from the high court pending resolution of that lawsuit in the lower courts.
As I described in a recent op‐ed:
In June 2014, the Environmental Protection Agency proposed a new rule for regulating power‐plant emissions. Despite significant criticism, on August 3, 2015, it announced a final rule. It gives states until 2018 — it “encourages” September 2016 — to develop final plans to reduce carbon dioxide emissions, with mandatory compliance beginning in 2022. EPA cites Section 111 of the Clean Air Act as justification for the Clean Power Plan, but that section can’t give the agency such authority. Section 111(d) doesn’t permit the government to require states to regulate pollutants from existing sources when those pollutants are already being regulated under Section 112, as those deriving from coal‐fired plants are.
The Supreme Court’s stay is a welcome development. The regulations constitute an unprecedented assertion of agency authority, so the Court had to step in to prevent irrevocable harm to the energy sector. As we saw last term in Michigan v. EPA, often it’s too late to fix administrative abuses judicially after the fact. Lawlessness must be nipped in the bud.
And this move may have foreshadowed the death knell of the Clean Power Plan altogether; the only question is whether the justices will have a chance to strike it down for good before the next president reverses it.
For more commentary, see Jonathan Adler.