U.S. Supreme Court Declines to Stay Enforcement of EPA’s Power Plant Greenhouse Gas Emissions Rule
On October 16, 2024, the U.S. Supreme Court issued an Order denying emergency requests from 28 different states, various industry groups, and energy companies (collectively, the “Challengers”) to stay enforcement of the U.S. Environmental Protection Agency’s (the “EPA”) latest rule curbing greenhouse gas emissions from power plants (the “GHG Emissions Rule”) while they are challenging it in the U.S. Court of Appeals for the D.C. Circuit (the “D.C. Circuit”).
This Order marks the third time this term that the justices have allowed EPA rules to stay in place while litigation continues in a lower court. On October 4, 2024, the Supreme Court turned down two other sets of requests on its shadow docket to stay enforcement of other EPA rules while litigation continues in a lower court – one for an EPA rule regulating the release of mercury and other hazardous air pollutants from coal-fired power plants, and the other for an EPA rule intended to regulate emissions of methane from crude-oil and natural gas facilities. However, these orders come only a few months after the Supreme Court granted a request to stay a different EPA rule – intended to reduce air pollution from power plants and other industrial facilities that affects downwind states – in Ohio v. EPA (June 27, 2024).
Background of the Case
Under the GHG Emissions Rule (issued in April 2024), coal-fired and new gas-fired power plants set to operate past 2039 have until 2032 to meet a carbon dioxide emission standard equivalent to installing a carbon capture and storage system and running it at 90% efficiency. Power plants not expected to meet this standard must plan to cease operations before 2039. For more information, please see our article on the GHG Emissions Rule.
After swiftly filing petitions with the D.C. Circuit challenging the GHG Emissions Rule, the Challengers also filed motions to stay enforcement of the GHG Emissions Rule with the D.C. Circuit pending resolution on the merits of their petitions. Ultimately, the D.C. Circuit rejected these motions to stay via order dated July 19, 2024 (the “D.C. Circuit Denial”). In the D.C. Circuit Denial, the D.C. Circuit held that the Challengers did “not [show] they are likely to succeed on [the merits of their claims in their petitions] given the record in this case.” Further, the D.C. Circuit held that the Challengers would not suffer irreparable harm without the stay either, as actual compliance deadlines with actual consequences do not commence until 2030 or 2032 – years after this case will be resolved.
By late August 2024, the Challengers had next filed emergency stay applications with the Supreme Court. In their emergency stay applications, the Challengers contended that the GHG Emissions Rule is inconsistent with the text of the Clean Air Act, which requires the EPA to determine the “best system of emission reduction” that is “adequately demonstrated.” While acknowledging that 90% carbon capture is an “important emerging technology,” the Challengers claimed that carbon capture has not been shown effective at the scale predicted by the EPA. They also argued that the GHG Emissions Rule violates the major questions doctrine, pointing to the Supreme Court’s decision in West Virginia v. EPA (June 30, 2022) that struck down the EPA’s Clean Power Plan and barred federal agencies from issuing regulations with “vast economic and political significance” without clear statutory authority.
Emergency Applications for Stay Denied
Ultimately, in denying the Challengers’ emergency applications for stay of enforcement of the GHG Emissions Rule, the Supreme Court did not agree with the D.C. Circuit on the merits of the petitions, but did agree with the D.C. Circuit on the lack of irreparable harm to the Challengers. Overall, Justices Brett Kavanaugh and Neil Gorsuch respected the D.C. Circuit Denial. The Order also noted that Justice Clarence Thomas would have temporarily blocked the EPA from enforcing the GHG Emissions Rule and that Justice Samuel Alito did not take part in the consideration or decision of the stay applications.
In a short opinion, Justice Brett Kavanaugh, joined by Justice Neil Gorsuch, explained in the Order that “the [Challengers] have shown a strong likelihood of success on the merits as to at least some of their challenges” to the GHG Emissions Rule without giving further details – although the D.C. Circuit in the D.C. Circuit Denial held that the Challengers did not show the same. Despite this, the Order held that the Challengers are “unlikely to suffer irreparable harm” before the D.C. Circuit issues its decision on the merits of the GHG Emissions Rule. Justice Kavanaugh explained this is mainly because compliance work would not need to begin until June 2025. Further, Justice Kavanaugh explained that with the D.C. Circuit agreeing to put resolution of the Challengers’ petitions on an accelerated timeline, a decision should be reached during the current Supreme Court term. Therefore, if necessary, the Challengers would then be able to bring the case back to the Supreme Court to seek temporary relief after the D.C. Circuit’s ruling on the merits and before they are required to start complying with the GHG Emissions Rule.
It remains to be seen how the D.C. Circuit will rule on the merits of the Challengers’ petitions – briefing is scheduled to conclude by November 1, 2024, and oral argument is set for December 6, 2024. However, the Order makes clear that the GHG Emissions Rule will remain in effect and enforceable for the foreseeable future.
Depending on the outcome of the upcoming U.S. election in November, the EPA may either continue to defend the GHG Emissions Rule or request that the GHG Emissions Rule be voluntarily remanded to the EPA for reconsideration, which is consistent with the approach taken during the previous Trump administration and could result in a repeal of the GHG Emissions Rule.
Special thank you to Shun Iwamitsu, Law Clerk in the Energy & Infrastructure Group, for his assistance in preparing this alert.
