WASHINGTON – The U.S. Supreme Court is allowing the Environmental Protection Agency to enforce its new rules for greenhouse gas emissions from coal-fired power plants while the legal challenge play out in lower courts.
On October 16, the court rejected requests for a stay filed by more than two dozen states and the energy industry that wanted to temporarily stop the measure that was introduced in May and went into effect in July.
Justice Clarence Thomas said he would have granted the requests, while Justices Brett Kavanaugh and Neil Gorsuch said they believe the states and groups have “shown a strong likelihood” of success on the merits of at least some of their challenges. Justice Samuel Alito recused himself.
Morrisey
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“This is not the end of this case,” West Virginia Attorney General Patrick Morrisey said. “We will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world.”
Morrisey said the rule is “yet another attempt of unelected bureaucrats to push something the law doesn’t allow.”
“Here, the EPA again is trying to transform the nation’s entire grid, forcing power plants to shutter,” he said. “And adding injury to unlawfulness, the Biden administration packaged this rule with several other rules aimed at destroying traditional energy providers.”
The new rules would require existing coal and new natural gas power plants to either cut or capture 90% of their climate pollution by 2032. The rules are expected to reduce the carbon dioxide emissions from the sector by 75% compared to a peak in 2005.
In his statement, Kavanaugh said there was no reason to rule to put this issue on the court’s emergency docket.
“In my view, the applicants have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency’s rule,” he wrote. “But because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits.
“So, this court understandably denies the stay applications for now. Given that the D.C. Circuit is proceeding with dispatch, it should resolve the case in its current term. After the D.C. Circuit decides the case, the non-prevailing parties could, if circumstances warrant, seek appropriate relief in this court pending this court’s disposition of any petition for certiorari, and if certiorari is granted, the ultimate disposition of the case.”
Earlier this month, the Supreme Court also rule in favor of Biden administration EPA rules that would cut methane gas emissions and mercury.
The challengers in this case said the EPA rules would be too costly for power plants and could force them to close, also saying the agency relied on “inadequately demonstrated technologies on unworkable timeframes, effectively squeezing plants into retirement.”
Morrisey referred to the 2022 U.S. Supreme Court ruling in West Virginia v. EPA.
“West Virginia v. EPA is clear that Congress placed real limits on what the EPA can do, and we will ensure those limits are upheld,” Morrisey said. “This green new deal agenda the Biden administration continues to force onto the people is setting up the plants to fail and therefore shutter, threatening the nation’s already stretched grid.”
The president and CEO of America's Power, which is part of the challenge, also expressed disappointment in the Supreme Court decision declining to stay.
“While we are disappointed that the Supreme Court declined to stay the EPA’s Carbon Rule, we are grateful that Justice Kavanaugh and Justice Gorsuch stated their belief that some of the challenges raised in our complaint have ‘a strong likelihood of success on the merits’" Michelle Bloodworth said. “We have long stated that the EPA’s Carbon Rule is an illegal overreach of the agency’s authority and would undermine the reliability of our nation’s electrical grid. By forcing the premature retirement of coal plants, the EPA would reduce needed sources of electricity at the same time electricity demand is exploding. Coal-based electricity is essential to ensuring the United States can develop and deploy artificial intelligence and not fall behind other nations like China.
“America’s Power has joined the 27 states who are challenging this rule in having our arguments heard by the D.C. Circuit Court of Appeals. We believe the courts will ultimately determine that the EPA has once again gone too far and will strike down this rule based on the merits of our challenge.”
Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia and Wyoming joined the West Virginia- and Indiana-led application to the Supreme Court.