On February 9, 2016, by a 5-4 decision, the Supreme Court issued a stay of EPA’s Clean Power Plan (“CPP” or the “Plan”), which sets state-by-state emissions limits for carbon dioxide from existing power plants. The stay had been requested by several states and industry groups challenging the CPP.

The stay will remain in place while the challenge to the CPP is heard by the Court of Appeals for the D.C. Circuit, which had originally denied the challengers’ request for a stay of the Plan while the case is pending. Unless the D.C. Circuit issues a ruling that permanently enjoins implementation of the Plan, the stay will continue until the latest of one of three events: (1) the deadline to appeal the D.C. Circuit’s decision on the validity of the Plan has passed; (2) the Supreme Court declines to hear an appeal of the D.C. Circuit’s decision; or (3) the Supreme Court ultimately rules on the validity of the CPP. As a practical matter, it seems certain that either EPA or the challengers will appeal the D.C. Circuit’s decision, and that the Supreme Court will hear the appeal of that decision. The D.C. Circuit has expedited briefing on the challenge to the CPP, which will be completed in June.

Originally, the CPP required states to meet carbon dioxide emissions targets by 2030, with interim targets beginning to phase in in 2022; the Plan also required states to submit implementation plans by September 6, 2016, although states could choose to make a preliminary submission by that date and request an extension of the deadline until September 6, 2018. Each of these deadlines is now on hold until the Supreme Court’s stay is lifted.

The Supreme Court has never before placed a stay on an EPA regulation before any lower court had considered that regulation’s validity.

The stay does not apply to another EPA rule issued concurrently with the CPP that regulates carbon dioxide emissions from new (as opposed to existing) power plants. Numerous states have also challenged that regulation, but did not request that it be stayed.

For additional information on the Clean Power Plan, contact Daniel Riesel or Ed Roggenkamp.