On February 9, 2016, the Supreme Court in an unprecedented 5-4 vote decided to stay the lean Power Plan before a judgement by the lower Court of Appeals. This vote effectively ordered the Environmental Protection Agency (“EPA”) to halt enforcement. The EPA’s Clean Power Plan (“Plan”) has a primary goal to combat climate change and global warming. Its purpose – to reduce carbon dioxide emissions. The Plan targets a 32 percent reduction of carbon emissions from the power sector, most notably plants who are coal-fired, by 2030. States must comply by 2022, with the first deadline for individual plans required by September of 2016. With the announcement of the Plan, 29 states filed a suit against the EPA for a stay. Those states argued that the Plan “is an unprecedented power grab by EPA that seeks to reorder the Nation’s energy grid,” and that an agency can’t exercise such power without “clear congressional authorization.” Despite this filing and the stay caused by the Supreme Court’s decision, seventeen state governors announced a new accord to move ahead on clean energy solutions.
On February 13, 2016, the world was shocked to learn that Justice Antonin Scalia had died. In the wake of the death of Justice Scalia, who voted to halt the regulation, the vote would now stand at 4-4. This will likely prove to be a turning point for the energy business in the United States. There are 4 possible outcomes with regard to the Plan after the death of Justice Scalia:
1. President Obama successfully nominates and wins Senate Approval for Scalia’s successor, making the ideological balance 5-4 on the Court in favor of liberals, and basically guaranteeing the Plan will be upheld.
2. No successor is named before the plan comes before the Supreme Court again; the federal district court in Washington D.C. upholds the plan again, meaning the 4-4 deadlock would leave the lower court’s ruling in place.
3. A new Democratic president chooses the next justice, leading to a similar outcome in scenario 1.
4. A new Republican president appoints the next justice, and the Clean Power Plan is scrapped.
Most commentators agree, the death of Scalia has given the Plan an extended fight. John Upton exclaims that “in dying, Scalia may have done more to support global climate action than most people will do in their lifetimes.” All eyes now turn to the last remaining months of President Obama’s term and the upcoming presidential election. The fate of the Plan depends on the outcomes of those events.”
Fortune, Supreme Court Vacancy Leaves Energy Industry in Limbo, http://fortune.com/2016/02/17/antonin-scalia-supreme-court-vacancy-energy-industry/?xid=gn_editorspicks (last visited February 23, 2016)
National Catholic Reporter, Supreme Court stay, vacancy raise questions about Clean Power Plan’s future, http://ncronline.org/blogs/eco-catholic/supreme-court-stay-vacancy-raise-questions-about-clean-power-plans-future (last visited February 23, 2016)
MIT Technology Review, Scalia’s Death Boosts Chances for Obama’s Clean Power Plan, https://www.technologyreview.com/s/600816/scalias-death-boosts-chances-for-obamas-clean-power-plan/ (last visited February 23, 2016)