Lisa Markowski for Zondits, February 16, 2016. Image credit: Mark Fischer (modified)
Just four days before the death of U.S. Supreme Court Justice Antonin Scalia, the SCOTUS voted 5-4 to put the Obama administration’s Clean Power Plan (CPP) on hold. The ruling will allow time for the lawsuits filed by twenty-seven states opposing the CPP to be resolved. But the loss of one of its conservative members leaves the Supreme Court neutral on the issue, meaning that its new appointee – who may not be approved until the next presidential term – will hold the deciding vote.
The CPP is a multifaceted initiative that requires states to incorporate more renewable energy and reduce greenhouse gas emissions from power plants in an effort to slow climate change, improve public health, and lower residential energy bills. The District of Columbia and three states – Alaska, Hawaii, and Vermont – are exempt from the plan. September 2016 was set as the deadline for each state to submit its individual plan for achieving these emissions reduction goals, but that date has now been nullified by the opposition that developed. Led by coal-rich West Virginia, the states opposing the CPP contend that the Environmental Protection Agency has overstepped its authority in implementing the plan.
The SCOTUS is not expected to revisit its decision to halt the CPP, but rather to hear the opposition’s case as either an eight-member Court or as a nine-member Court after its new member is appointed. Since the Senate Republicans declared almost immediately following Scalia’s death that they will reject whomever President Obama nominates, there is no indication that this complex matter will be resolved any time soon—especially considering the inevitable appeals that will follow. If the current eight-member SCOTUS hears the case and returns the expected 4-4 tie, then the District of Columbia’s Circuit Court of Appeals would decide the case. The D.C. Circuit is scheduled to hear the case in June, but a final decision may not come until 2018.
The states that have filed suit are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Nineteen states support the CPP, and four states have neither filed suit nor pledged support.