Industrial, Regulation  -  February 16, 2016

Supreme Court stays Clean Power Plan, uncertainty reigns after Justice Scalia's death

The Obama Administration's plans to regulate greenhouse gas emissions from power plants via the Clean Air Act – through a new rule known as the Clean Power Plan – had been moving along fairly well until the U.S. Supreme last week issued a 5-4 ruling to stay the plan while pending litigation moves forward. However, the recent death of Justice Antonin Scalia's death throws the proceedings into turmoil.

All eyes are focused on who the next Supreme Court Justice will be and how long it will take to make the confirmation. President Obama would most likely select a liberal-leaning judge who would be supportive of the Clean Power Plan, but the Senate has vowed to block anyone the president selects. In that case, in the absence of a new justice, the Clean Power Plan would receive a split ruling and the relevant lower court ruling would stand. The D.C. Circuit Court is currently reviewing the case and most analysts anticipate a supportive ruling, though anything can happen.

For now, all eyes are on what happens with the Supreme Court. States had been facing a September 2016 deadline for submitting Clean Power Plan implementation plans, though under the High Court's ruling, that deadline is suspending pending the outcome of the D.C. Circuit Court case.

Perhaps one of the biggest takeaways from these events is the fact that some experts say the Clean Power Plan was drawn up on shaky legal ground, despite White House statements to the contrary. Regardless, the cornerstone of President Obama's climate change legacy will remain up in the air over the short to medium term.  

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