Supreme Court puts brakes on EPA Clean Power Plan

In an important, albeit temporary, victory for coal-fired utilities, the U.S. Supreme Court on Feb. 9 agreed to grant West Virginia and other plaintiffs a stay of the Environmental Protection Agency Clean Power Plan.

The EPA rule to have states cut power sector carbon dioxide emissions 32 percent by 2030 “is stayed pending disposition of the applicants’ petitions for review in the United States Court of Appeals for the District of Columbia Circuit,” the high court said in a one-page order.

West Virginia Attorney General Patrick Morrisey hailed the decision blocking the EPA rule as a monumental victory, explaining that it prevents the EPA “from enforcing its illegal and unprecedented Power Plan until the court challenge concludes,” Morrisey said in a news release.

West Virginia and Texas led a coalition of 29 states and state agencies in requesting the stay.

Morrisey praised the decision saying it provides immediate relief for workers and businesses across the country. It also reinforces confidence in the broader challenge as the Supreme Court found the coalition’s arguments strong enough to stop EPA even before the lawsuit concludes.

“Make no mistake — this is a great victory for West Virginia,” Morrisey said. “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues,” said the West Virginia attorney general.

The D.C. Circuit Court will hear oral arguments on the merits of the states’ case on June 2.

A final ruling from that court might not come for months.

West Virginia and Texas led 23 other states in challenging the EPA’s power plan on Oct. 23, 2015, the day it was published in the Federal Register. The states argue EPA exceeded its authority by double regulating coal-fired power plants and forcing states to fundamentally shift their energy portfolios away from coal-fired generation among other reasons.

Those joining West Virginia Attorney General Morrisey and Texas Attorney General Ken Paxton in seeking a stay Jan. 26 with the Supreme Court were Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, Ohio, Oklahoma, South Carolina, South Dakota, Utah, Wisconsin and Wyoming, along with the Mississippi Department of Environmental Quality, Mississippi Public Service Commission, North Carolina Department of Environmental Quality and Oklahoma Department of Environmental Quality.

Various interest groups on both sides of the issue immediately started issuing statements either praising the high court’s order, or saying that it was a mistake. The Supreme Court’s four liberal justices indicated they were opposed to issuance of the Feb. 9 stay.

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Wayne Barber, Chief Analyst for the GenerationHub, has been covering power generation, energy and natural resources issues at national publications for more than 22 years. Prior to joining PennWell he was editor of Generation Markets Week at SNL Financial for nine years. He has also worked as a business journalist at both McGraw-Hill and Financial Times Energy. Wayne also worked as a newspaper reporter for several years. During his career has visited nuclear reactors and coal mines as well as coal and natural gas power plants.

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