In a highly unusual action, the United States Supreme Court yesterday issued a stay prohibiting the implementation of the "Clean Power Plan," a final regulation issued by the U.S. Environmental Protection Agency on October 23, 2015, aimed at reducing the use of existing coal-fired electricity generation facilities and increasing renewable generation in order to reduce greenhouse gas emissions. The Supreme Court's decision, issued without explanation or analysis, imposed a stay in connection with a challenge to the Clean Power Plan that is pending before the U.S. Court of Appeals for the District of Columbia. The Court of Appeals rejected an application for a stay on January 21, 2016, and will hear oral argument on the main challenge to the Clean Power Plan on June 2, 2016.
The Supreme Court's action is unprecedented. As the Solicitor General pointed out, and the State applicants conceded, the parties could "identify no case in which this Court has granted a stay of a generally-applicable regulation pending initial judicial review in the court of appeals." And, because the Supreme Court requires parties to demonstrate a "fair prospect" of success on the merits to obtain a stay, it likely reflects the view of a majority of Justices that the Clean Power Plan is unlikely to survive the Court's review.