Hot takes on Supreme Court's decision not to chill carbon regs
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The hottest climate policy news this week is something the Supreme Court didn't do: freeze Joe Biden's big carbon emissions rules for power plants.
Why it matters: The rules target a huge CO2 source — existing coal plants and future gas plants — and avoided being quickly forced into hibernation.
- The high court on Wednesday rebuffed red state and industry pleas to freeze the standards while appellate challenges play out.
Catch up quick: Justices Brett Kavanaugh and Neil Gorsuch wrote that opponents have "strong likelihood of success on the merits."
- But litigants don't even need to start initial compliance work until June, they noted. So there's time for the appellate case to end and possible new SCOTUS requests to follow.
- Justice Clarence Thomas wrote that he wanted to stay the rule. Samuel Alito didn't take part.
A few early takeaways...
The EPA regs still face huge legal hurdles. SCOTUS' conservative majority looks askance at big rules unless Congress has given agencies explicit marching orders.
- That's apparent in two recent cases — the "major questions" ruling in 2022 and the 2024 decision to overturn "Chevron deference."
The order offers tea leaves. Jeff Holmstead, a partner with the firm Bracewell LLP, said via email that it "doesn't exactly bode well for EPA," noting three justices have signaled that they think the rule is unlawful.
- "If the next administration doesn't revoke the rule and the DC Circuit upholds it, it will almost certainly go to the Supreme Court, and I think other justices will be skeptical of it, too," writes Holmstead, whose firm represents power companies but isn't involved here.
The 2024 election will matter a lot. ClearView Energy Partners, in a note, said Donald Trump's EPA could stop defending it in court, or halt the regulation pending a rewrite.
A little trend is afoot. It's the third time in recent weeks that SCOTUS refused requests to stay an EPA rule while lower court fights are active.
- The same thing happened Oct. 4 with methane emissions and air toxics standards, though in June they did freeze a separate air pollution rule.
- Harvard environmental law professor Richard Lazarus, via email, said Chief Justice John Roberts and Amy Coney Barrett, another conservative, have "created a new majority" on stays with the court's three liberals.
- That said, Holmstead noted that granting such stays is exceedingly rare.
A lot has changed since early 2016. That's when the Supreme Court stayed the Obama-era Clean Power Plan, which never wound up taking effect.
- The Biden rule is, relatively speaking, less central to federal climate policy than Obama's rule.
- That's because huge financial carrots — namely the IRA — are the biggest part of the current White House climate agenda.
Alito's absence is a wild card. Yesterday's brief order didn't explain why he sat out.
- But if he were recused from litigation against the rule SCOTUS might eventually take up, that's likely one less vote against it.
