Supreme Court deals blow to Obama by putting his climate change rules on hold

Steam billows from the coal-fired Merrimack Station in Bow, N.H.

Feb. 9, 2016 5:25 PM PT

Reporting from Washington — The Supreme Court dealt a surprising setback to President Obama on Tuesday by putting his climate change policy on hold while a coalition of coal producers and Republican-led states challenges its legality.

The justices, by a 5-4 vote, issued an unusual emergency order that blocks the Environmental Protection Agency from moving forward with its effort to reduce carbon pollution from power plants by 32% by 2030.

The order said the EPA’s “carbon pollution emission guidelines” for power plants are “stayed pending” a decision from the U.S. Court of Appeals for the District of Columbia Circuit, which will hear the case this summer.

It is rare for the high court to intervene in a case pending in the lower courts. The brief order suggests that most of the justices have doubts about the legality of the EPA’s policy.

The order could also be a sign that conservative justices are increasingly skeptical of Obama’s use of executive authority.

In a separate case this term, the high court will decide whether Obama went too far in issuing an executive action to defer deportation of more than 4 million immigrants here illegally.

Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy, Clarence Thomas and Samuel A. Alito Jr. joined in support of the order.

The four liberal justices dissented: Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor and Elena Kagan.

A former Justice Department attorney who has worked on environmental litigation called the order significant.

It is “extraordinary and fairly surprising,” Washington lawyer James Rubin said. “The court essentially reviewed the merits before the D.C. Circuit even had a chance to rule on them, something the court has not done before in the context of a rule-making challenge. It’s a significant blow to the EPA and the administration’s climate change plan.”

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The EPA regulations, known as the Clean Power Plan, would set state-by-state targets for reducing greenhouse gases from power plants. The rules would force many states to shut down older coal-fired plants and produce more electricity using natural gas or solar and wind power.

Lawyers for West Virginia, Texas and 24 other states sued, contending the EPA does not have the authority under the Clean Air Act to launch a broad attack on greenhouse gases.

They filed an emergency appeal at the end of January asking for the high court to put the EPA plan on hold while their lawsuit proceeds.

The challengers reminded the justices that they ruled last year in a separate case that the EPA had failed to weigh the $9-billion cost before requiring power plants to eliminate mercury emissions. But because the high court had allowed the rules to take effect while the legal challenge went forward, by the time the industry won, it was too late because the power plants had complied. Their message was that the high court this time needed to intervene early.

The appeals court said it would hear arguments in June for the climate case and would probably rule in the fall, during Obama’s last months in the White House.

“Make no mistake: This is a great victory for West Virginia,” said the state’s attorney general, Patrick Morrisey. “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.” West Virginia and Texas led the coalition of states challenging the EPA regulations.

The National Rural Electric Cooperative Assn., one of several groups that joined the challenge, applauded the court’s move.

“Charging ahead with implementation of the Clean Power Plan would have caused immediate and irreparable harm to America’s electric co-ops,” said Jeffrey Connor, the group’s interim chief executive.

The president’s lawyers had urged the justices to turn down the emergency request, calling it “extraordinary and unprecedented.” Meanwhile, 18 mostly Democratic-led states, including California and Illinois, filed a brief supporting the administration.

In a statement Tuesday, the White House said it disagreed with the court’s decision.

“We remain confident that we will prevail on the merits,” the statement said. “Even while the litigation proceeds, EPA has indicated it will work with states that choose to continue plan development and will prepare the tools those states will need.”

The Environmental Defense Fund expressed disappointment in the court order.

“Today’s court decision is unfortunate, but it does not reflect a decision on the merits,” said Vickie Patton, its general counsel. She said she was confident the courts would ultimately uphold the EPA plan.

Twitter: @DavidGSavage

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