The Supreme Court's Clean-Power Power Grab

Abstract

In 2015, the Environmental Protection Agency (EPA) issued a final rule – the so-called "Clean Power Plan" – establishing emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many parties challenged the final rule in the D.C. Circuit, the only federal circuit court with jurisdiction to review such rules. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined to do so, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. The Court's orders granting the stay ran directly to EPA's rule, not to any judicial decision.

In staying EPA's Clean Power Plan, the Supreme Court for the first time stopped a nationally applicable agency regulation prior to an initial decision on the merits of the rule in a lower court. Equally notable, it appears that the Court may have used its general equitable authority, not to respond to a potentially erroneous decision from an inferior court, but to directly order the federal executive branch to stand down. In granting the stay, the Court likely doubled down on a set of highly problematic interpretive principles it has embraced in recent Terms and accepted a disquietingly broad view of the nature of the harm justifying a stay. The Court declined to follow any of the readily available and more deliberative procedural pathways to a decision of this consequence. The five justices who voted for the stay declined even to explain their decision, offering instead only five terse, identically worded orders in response to five differently argued applications for a stay. Having aggressively inserted themselves into one of the most intense legal and political battles of the day, the justices then sidled away, leaving advocates, the public, and the lower court that is now reviewing the merits of EPA's rule to guess at the basis for, and even the scope of, the Court's order.

The Supreme Court had better choices than this. It could have, most simply, declined to grant the stay on the merits. It could have, as it has done in every other case it has faced involving a challenge to an agency rule, waited for an initial decision on the merits of the rule in a lower court before entering the fray. It could have treated the applications for a stay as petitions for certiorari and granted review on the question whether the D.C. Circuit had erred in declining to stay the Clean Power Plan. At the very least, it could have followed a more careful and illuminating process in acting on the stay. By far the soundest option was to decline to grant the stay. But any one of the other alternatives would have been an improvement on the Court's unprecedented and precipitous action.

Keywords: administrative law, EPA, Clean Power Plan, federal jurisdiction, Supreme Court