The Clean Power Plan (CPP) Update : U.S. Supreme Court Grants a Stay, Putting CPP on Hold
By: Matt Frank, Environmental Lawyer
On October 23, 2015, the Environmental Protection Agency (EPA) published the Clean Power Plan (CPP) final rule. The rule requires a 32% nationwide reduction in carbon dioxide emissions from existing coal-fired power plants by 2030. The CPP also establishes emission limits for each state, with Wisconsin’s reduction target set at 34%.
The CPP provides flexibility to each state in meeting the reduction targets. Options include improving the heat efficiency of power plants, switching from coal to natural gas, expanded use of renewable energy such as wind and solar, and investing in energy efficiency. A state must submit its plan to EPA by September of 2016, with the potential to receive an extension from the EPA until 2018. If no state plan is submitted, a state will be required to follow a federal plan developed by the EPA.
Wisconsin is among 28 states that have sued the EPA to invalidate the rule, while 18 states have intervened in support of the rule. On January 21, 2016, the U.S. Court of Appeals for the D.C. Circuit denied a request for a stay of the rule. The petitioners then asked the U.S. Supreme Court for a stay, which was granted on February 9, 2016. Implementation of the CPP is now on hold. Meanwhile, the Court of Appeals for the D.C. Circuit is scheduled to hear arguments on the merits of the case in June.
The Supreme Court’s decision to grant a stay of the CPP was very unusual. Typically, the Court does not grant a stay of a regulation before is fully reviewed by the Court. While the Court’s action does not necessarily translate into a decision on the merits overturning the CPP, it indicates that a 5-4 majority of the Supreme Court is sympathetic to the arguments raised by the petitioners.
The U.S. Court of Appeals for the D.C. Circuit will now decide the merits of the case after arguments scheduled for June 2016. Regardless of the outcome in that court, the case will eventually end up in the Supreme Court for a final decision