By a vote of 5 to 4 late Tuesday, the United States Supreme Court issued a stay of implementation of the Clean Power Plan (CPP) until pending legal challenges to the CPP are resolved. The Court's order effectively puts on hold federal regulations designed to significantly reduce carbon dioxide emissions from existing power plants by 2030 until all appeals presently before the United States Court of Appeals for the District of Columbia (DC Circuit) as well as any subsequent appeals to the Supreme Court are decided.
Supreme Court Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito supported the stay. Dissenting from this decision were Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Until the Supreme Court ultimately decides on the merits or refuses to become involved after the United States Court of Appeals for the District of Columbia rules, the EPA won't be able to enforce a September 6, 2016 deadline for states to submit proposed plans to the EPA for review. Per the CPP, these plans must demonstrate how the states will achieve emissions reduction targets under the CPP. Additional deadlines that the stay potentially places in jeopardy include the submission of final plans to the EPA in 2018, as well as the 2022 start date for implementation.
The Supreme Court's brief order was succinct. It did not elaborate on the Court's reasoning behind the granting of the stay. Factors considered by the Court included the likelihood that states and utilities opposing the CPP would ultimately succeed on the merits of their claims and whether denying the request for a stay would cause irreparable harm to states and utilities appealing the CPP while all legal challenges play out. According to the U.S. Solicitor General's brief on behalf of the EPA in opposition to the stay, the Supreme Court has never before granted a request to stay a regulation of general applicability without prior review by a federal appeals court.
With the stay in place, attention now shifts back to the DC Circuit, where there is an expedited schedule for briefing and oral argument on the CPP. Initial briefs are due April 15, 2016, and oral argument is set for June 2, 2016.
Please feel free to contact any of the attorneys listed here should you have any questions.
Day Pitney Alert
Day Pitney will host a FERC 101 event, co-sponsored by Connecticut Power & Energy Society and EBA, on November 13 in its Hartford and Washington, DC offices.
On November 13, Day Pitney LLP and FH+H, PLLC, along with PDB FutureCom International, hosted an invitation-only program, "Industrial Internet of Things (IIoT) & America's Critical Energy & Transportation Infrastructure," held at the new International Spy Museum in Washington, D.C.
Sebastian Lombardi will serve on a panel, "State Policies and the Markets: How the tension is playing out in PJM," at the Northeast Energy and Commerce Association's Power Markets Conference on November 8, at the Marriott Courtyard Hotel in Marlborough, MA.
Day Pitney White Paper
Day Pitney associate Alexander W. Judd has been elected to serve as Chair of the Energy, Public Utility and Communications Law Section of the Connecticut Bar Association (CBA).
Day Pitney Press Release
Paul Belval will be honored at "Celebrating Leaders for Justice," a dinner and ceremony being presented by the Greater Hartford Legal Aid (GHLA) Foundation.
Joseph Fagan was quoted in an article, "Fuel shippers seek U.S. review of 'excessive' Colonial Pipeline rates," published by Reuters.
Day Pitney and the National Governors Association (NGA) hosted an invitation-only forum, held at the Downtown Harvard Club of Boston, that brought together lawyers, policymakers, cybersecurity experts and other participants to identify and discuss legal issues related to the growing Industrial Internet of Things (IIoT).