The Supreme Court on Wednesday declined to block President Joe Biden’s climate rule for power plants, allowing a centerpiece of his environmental agenda to take effect.
A stay had been sought by a coalition of red states and utility and coal industry groups, but the justices voted against blocking the rule.
Details: Justice Clarence Thomas would have blocked EPA’s rule, according to a short order issued by the court.
Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, wrote in a note that he believes the challengers “have shown a strong likelihood of success on the merits as to at least some of their challenges.” However, he added, “because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D. C. Circuit decides the merits. So this Court understandably denies the stay applications for now.”
Noting the D.C. Circuit has fast-tracked its review, Kavanaugh said that if the challengers lose at that level they could then again “seek appropriate relief in this Court.”
Justice Samuel Alito recused himself from decision, according to the order. The court did not state why.
Context: The rule issued by EPA this spring directed coal-fired power plants to reduce their carbon dioxide emissions by 90 percent, Reg. 2060-AV09. The only known technology capable of that level of reduction is carbon capture and sequestration, but it has not been deployed at those levels and raised a litany of infrastructure and logistical issues.
The D.C. Circuit Court of Appeals, which is hearing the case, declined to block the rule in July. The three-judge panel wrote that the challengers were unlikely to succeed with arguments that EPA’s decision to base the targets on CCS was arbitrary and capricious, a surprising early endorsement of EPA’s methods.
What’s next: Litigation will now continue in the D.C. Circuit. The court previously fast-tracked the case, with briefing accelerated to finish on Nov. 1, raising the possibility of oral arguments as early as December.
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