On October 16, 2024, the United States Supreme Court shot down requests from states and industry groups to stay the implementation of the Environmental Protection Agency’s (EPA) rule to reduce carbon emissions from coal-fired power plants while their challenge moves forward in federal appeals court. The decision is the Supreme Court’s third refusal this month to block EPA rules regulating the emissions from fossil-fueled power plants and facilities this month.
A coalition of 25 Republican-led states, energy companies, utility and fossil fuel industry groups asked the Supreme Court to issue an expedited order to stop the EPA from implementing a final rule regulating carbon emissions from coal-fired power plants. The rule would require that coal-fired power plants that are expected to operate past 2039 meet, by 2032, carbon emissions standards equivalent to what they would achieve if they installed carbon capture and sequestration technology and ran at 90% efficiency or else retire by 2039. In their applications for a stay, challengers resurrected arguments from West Virginia v. EPA that EPA exceeded its Clean Air Act authority by effectively mandating a shift away from fossil fuel-fired power plants. The Clean Air Act requires that EPA determine the best system of emissions reduction that is adequately demonstrated. Challengers insisted that, while carbon capture is an important emerging technology, the 90% capture required by the rule is not currently achievable at commercial scale. Challengers also argued that the rule violates the “major questions doctrine,” which stands for the proposition that, if Congress wants to give an agency the power to make decisions of vast economic and political significance, it must say so clearly.
EPA pushed back on the stay applications and the notion that 90% carbon capture is not achievable. Because power plants would not need to comply with the emissions standards for six to eight years, power companies would not be irreparably harmed if the rule remains in place – one element that challengers must meet to prevail on their requested relief. Furthermore, the dispute centers not on the technology but on the emissions reductions achievable with that technology – which EPA argued are precisely the questions that Congress has entrusted to EPA as the expert agency.
In a short opinion, Justices Brett Kavanaugh and Neil Gorsuch stated that the challengers are unlikely to suffer the irreparable harm they claimed they would suffer if the rule were to go into effect. As the rule is currently being litigated before the D.C. Circuit Court of Appeals on an expedited schedule, the Justices noted that challengers would not likely suffer harms warranting a stay because they would not need to start work to come into compliance with the rule until June 2025, likely after the D.C. Circuit is expected to decide the case. The Justices nevertheless went so far as to say that the challengers showed a substantial likelihood of success on at least some of the merits of their opposition to the EPA rule. The high court “understandably denies the stay applications for now…. After the D.C. Circuit decides the case, the prevailing parties could, if circumstances warrant, seek appropriate relief in this Court”.
Notably, though he offered no opinion of his own, Justice Thomas would have granted the applications for stay. Justice Alito did not participate in the case.
Edison Electric Institute, a lead applicant and the trade organization for U.S. investor-owned utilities, has already said it will continue to fight the rule at the D.C. Circuit. Environmental groups, who have long pushed for stricter emissions standards on the most polluting fossil-fueled power plants, applauded the Supreme Court’s decision.
In defense of the rule, EPA relied on hundreds of pages of scientific and technical analyses that carbon-capture systems have been adequately demonstrated and can achieve the standards of performance set forth in the rule. Perhaps more meaningful, according to EPA, the rule would significantly reduce carbon pollution over the next two decades – equivalent to preventing the annual emissions of 328 million gasoline cars and, in turn, providing nearly $400 billion in climate and public health benefits. It is now up to the D.C. Circuit to decide whether the rule can move forward. Challengers are likely to seek certiorari if they are unsuccessful in halting the rule at the D.C. Circuit.
