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Clean Power Will Have to Wait After Supreme Court Issues Stay

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By Casey C. Sullivan, Esq. on February 10, 2016 2:57 PM

A divided Supreme Court blocked implementation of the EPA's Clean Power Plan on Tuesday. The stay, issued in response to five challenges to the plan, means that the Obama administration may not take any steps to implement its key climate change strategy, which would have drastically limited greenhouse gas emissions from power plants.

It's unusual for the Court to stay federal regulations in response to a challenge and the move may indicate that many justices hold serious doubts about the Clean Power Plan's legality.

Clean Power by 2022? Probably Later

The EPA's Clean Power Plan marks the government's most serious attempt to address climate change yet. The Clean Power Plan rules, published in October of 2015, are the first-ever national standards addressing carbon pollution from power plants, according to the EPA. The Plan seeks to reduce carbon dioxide emissions by 32 percent relative to 2005 levels in upcoming years, largely through state-driven implementation plans.

The rules are long in scope. Under the new regulations, states would have until 2018 to submit implementation plans and until 2022, 2029 and 2030 to meet specific emission performance rates.

Government lawyers had argued that the long-term nature of the Plan's requirements should caution the Supreme Court against stepping in at this point, according to CNN Politics. It's an argument that wasn't able to sway five justices, however. Chief Justice Roberts and Justices Scalia, Kennedy, Thomas, and Alito all voted for the stays.

A Bad Sign for Clean Power?

The Plan has quickly become "the most heavily litigated environmental regulations ever," according to Environment & Energy Publishing. It is currently facing challenges from 29 states and dozens of coal mining operations, power companies, and trade associations. (It's also being supported by 17 states and D.C., plus many environmental and public health groups.)

There are at least 15 different lawsuits pending against the Plan, including the 5 in which the Supreme Court ordered stays on Tuesday.

Those suits have been consolidated before the D.C. Circuit, where the objecting parties will argue that the plan amounts to "an unprecedented, unlawful attempt by an environmental regulator to reorganize the nation's energy grid," according to the stay motion filed by the states.

The stay is a sign that the conservative wing thinks the challenges are more likely than not to succeed on the merits. (Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented.)

We'll have to wait a while to see how it plays out, however. It could take several years for the case to wind its way up to the Supreme Court.

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