Yesterday the Supreme Court stayed the Clean Power Plan (CPP), which means that EPA may not enforce any part of it until the litigation is over. Assuming that the Court will review whatever the D.C. Circuit decides, this could all be resolved in late 2017—or more likely, by June of 2018. Not surprisingly Justice Kennedy, who has been the swing vote in each of the Court’s three previous climate cases, was the deciding vote; no prizes for guessing how the other eight came down (along ideological lines).
Since Justice Kennedy will undoubtedly be the deciding vote in the eventual decision, reading the tea leaves might indicate that the CPP is doomed. Certainly the Court granting a stay in such circumstances is unprecedented, but then again so is the CPP. Never before has EPA—or, for all we know, any regulatory agency—proposed making compliance with a rule dependent either on the actions of third parties (reduced power demand) or building tens of billions of dollars’ worth of additional/duplicative infrastructure (renewables). And all this in connection with the power sector which, to borrow from Karl Marx, is the means of production for the entire economy. Seen in that light, it is quite possible that Justice Kennedy chose to err on the side of caution. Or not; we’ll know in about two years.
This means that come September, states will not have to tell EPA in outline what they intended to do in their state plans, which were due in detail in September 2018. If the Court eventually upholds the CPP, the 2018 deadline will be extended, probably to 2020. What that does to the CPP’s schedule of interim and final compliance dates is unknown, but comparable extensions would put the final compliance date off by two years, to 2032.
Thus the most immediate issue is what this means for the climate agreement forged in Paris and slated to be signed in April. As we have written, the U.S. was not going to meet its 2025 target under any realistic circumstances, and now its single largest component will certainly be years behind schedule and possibly kaput. This is not going to do anything good for how other countries view their own obligations.
Interestingly, that the stay keeps EPA from enforcing the 2016 and 2018 deadlines makes no difference in terms of who wins the White House in November. Hillary Clinton would keep the CPP, and any Republican would have killed it.
Meanwhile, the 27 states that oppose the CPP will put everything on the shelf. But little will change for the 18 states that support it; presumably they will proceed with their planning processes and adjust for these delays. For the nation’s generators and utilities, there is more uncertainty.
And absolutely nothing will change for the coal industry, as their current problems stem from cheap natural gas and not a regulation that—even before the stay—would not even begin implementation for another four years. But just as they have miscalculated everything else (that’s why almost all are either in, or on the verge of, bankruptcy), they will see the stay decision as a sign that they are saved. Sad: If the Court kills the CPP, then however many of them are still around in 2018 will be no better off. And if the Court upholds it, then they will be in for a very, very unpleasant surprise.