Environmental Protection

Does CPP Stay Really Mean States Should ‘Put Pencils Down’?

By Jack Fitzpatrick

Nearly four months after the U.S. Supreme Court issued a stay on the Obama administration’s landmark Clean Power Plan, supporters and opponents are still arguing over what it means. And the squabbling will likely continue until the court eventually rules on the plan’s merits.

Opponents of the plan say the Environmental Protection Agency should stop helping states voluntarily prepare to comply with the emission-cutting requirements. They have also faulted the EPA for not pushing back final compliance deadlines in 2030 because of the stay, which was issued in February.

West Virginia Attorney General Patrick Morrisey told reporters at a National Press Club event last week that “a stay is a stay, and people should put their pencils down.”

Oklahoma Attorney General Scott Pruitt recently testified at a House Science subcommittee hearing, saying case law “clearly supports there should be a suspension of the dates while the stay is in place.”

Supporters counter that the EPA is within its rights to help states that want to develop plans to move away from coal.

Supporters also say the opponents are putting too much weight behind the stay. Constitutional Accountability Center chief counsel Brianne Gorod, who also testified to the subcommittee, told Morning Consult in an interview the court could have spelled out everything Morrisey and Pruitt are asking for, but the justices chose not to do so.

If the court had wanted to bar the EPA from helping states move ahead with their own implementation plans, it could have issued an injunction instead of a stay, blocking all activity rather than only the deadlines that occur during the stay, Gorod said.

States were initially required to submit initial implementation plans this year, but that deadline can’t be enforced, thanks to the stay. Final plans would have been due 2018, which may also be pushed back. The D.C. Circuit Court of Appeals will hear the case in September, and after it issues a ruling, the Supreme Court is expected to take up the case.

If the justices had wanted to “toll” the final deadlines, pushing them back for the amount of time the stay lasts, it could have included that order in the stay, Gorod said. The court could do so after it rules. But for now, the EPA is on firm legal ground in requiring states to cut emissions by 2030, and to start making progress toward their goals by 2020, she said.

“With a stay, the rule isn’t enforceable while litigation is ongoing. An injunction would be much more powerful,” cutting off essentially all activities related to the rule, Gorod said.

Jeff Holmstead, an attorney representing the plaintiffs in the lawsuit, told Morning Consult that Gorod’s points are technically true but they might not hold up over time. The court hasn’t yet tolled the final deadlines, Holmstead said. But if they do, the EPA is just creating uncertainty by holding on to the same deadlines until it’s forced to change them.

There is another caveat to the distinction between a stay and an injunction — the plaintiffs only formally requested a stay, and as a matter of practice, the court doesn’t go beyond what the plaintiffs request, Holmstead said. That doesn’t change whether the EPA is in the clear legally, but it makes it hard to argue that the court specifically decided against issuing an injunction. And it doesn’t indicate that the court is opposed to pushing back more deadlines, Holmstead said.

“The whole purpose of any stay is to ensure the parties that asked for the stay are not disadvantaged, or forced to do anything while the stay is in effect,” Holmstead said. “There’s no chance that the court is going to come back and say, ‘Let’s keep those deadlines.’”

As for whether CPP opponents can already claim a minor victory because of the stay, Gorod was quick to point out that it wasn’t an actual ruling. The court’s statement issuing the stay says nothing about the law itself, and the justices still haven’t heard arguments. And that’s beside the fact that without the late Justice Antonin Scalia, there are now only four justices who supported issuing the stay.

“It doesn’t issue a written opinion. It doesn’t offer insight into what it is thinking,” Gorod said. “Whatever it thought then doesn’t tell us much about what they’ll conclude.”

Still, justices are specifically directed to consider the plaintiffs’ “likelihood of success on the merits” when considering issuing a stay, so the decision is inherently a good sign for CPP’s opponents, Holmstead said.

“It’s correct to say it’s not the final decision on the merits, but they can’t say it’s unrelated to the merits.”

It would be “naive” to say the court’s open seat isn’t pivotal, Holmstead said. But not all cases break along typical political lines. In fact, the court ruled 8-0 on Tuesday that the Army Corps of Engineers’ determinations under the EPA’s Waters of the United States rule can be challenged in court.

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