On Tuesday, the U.S. Supreme Court issued a stay on the Environmental Protection Agency’s (EPA) Carbon Pollution Emission Guidelines for Existing Stationary Sources, more commonly known as the Clean Power Plan (CPP). This means that states will not be obligated to comply with any part of the CPP until a decision is reached on Chamber of Commerce, et al. v. EPA
The D.C. Circuit Court will begin hearing oral arguments on the merits of the CPP on June 2 of this year. The lower court’s ruling is expected to be appealed to the U.S. Supreme Court, regardless of the outcome. If past regulations of a similar scale are any indication, the U.S. Supreme Court will hear the case.
The final impact of this stay will depend largely on the outcome of Chamber of Commerce, et al. v. EPA. Even if the courts uphold the CPP, it is likely that the initial state submittal deadline of September 6, 2016 will be affected. However, if the case is concluded swiftly in favor of the EPA, they may be able to hold onto their final submittal deadline in 2018, despite the stay.
If the courts rule against the EPA, the CPP may be revised, or it may need to be scrapped all together. However, unless the court ruling overturns Massachusetts v. EPA (2007), the EPA will still be obligated to eventually regulate carbon as a hazardous air pollutant.
In December of 2011, the D.C. Circuit Court issued a similar stay on the Cross-State Air Pollution Rule (CSAPR). That rule went through a series of revisions and court battles, but the stay was eventually lifted in October of 2014.
The future of the CPP remains uncertain, but most industry experts would agree that participants still need to prepare and plan for the eventual impact of some kind of federal limit on carbon emissions.