How Will the Passing of Justice Scalia Impact the Supreme Court’s Review of the EPA Clean Power Plan Case?


Last week, we wrote about the Supreme Court's unprecedented issuance of a stay prohibiting the implementation of the "Clean Power Plan" while a judicial challenge to the Plan is pending. The extraordinary stay decision garnered five votes—those of the Chief Justice, and Justices Scalia, Kennedy, Thomas, and Alito—and signaled that these five Justices believed that the challenge to the Plan had at least a "fair prospect" of success.  On the night of February 12, 2016, just two days after the stay was issued, Justice Scalia passed away.  Justice Scalia's death raises many questions about the future course of the litigation and the ultimate disposition of the Clean Power Plan.

The Clean Power Plan is a regulation aimed at reducing greenhouse gas emissions from power plants that was issued in final form by the U.S. Environmental Protection Agency on October 23, 2015.  The regulation was promptly challenged by many parties, including industry, trade associations and representatives of a large number of states.  The challenge is currently pending before a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit.  Under the D.C. Circuit's expedited schedule, oral arguments are scheduled for June 2, 2016 and a decision from the panel could be issued as early as the fall of 2016.

Last week, the Supreme Court stayed the implementation of the Clean Power Plan until the Supreme Court itself either declines to review the Plan (i.e., denies a "petition for certiorari") or reviews the rule and issues a decision on the merits of the dispute.  This update addresses how a vacant seat or new Justice could affect the Supreme Court's handling of the case.