The Supreme Court denied an emergency request late Oct. 16 to block a new federal regulation restricting emissions by coal-fired power plants, but two justices suggested it may revisit the case.
The new decision was made after a series of emergency applications were filed by Republican-led states including West Virginia and energy interests that sought to halt the Biden administration’s rule, announced in April, that would force coal plants and new natural gas plants to capture 90 percent of emissions the federal government says contribute to global warming.
Those opposed to the rule say it is unneeded and could force up energy prices. If former President Donald Trump, a Republican, wins the election next month, his new administration may rescind the regulation.
The case is currently being considered by the U.S. Court of Appeals for the District of Columbia Circuit. The Supreme Court is usually reluctant to block regulations when litigation over them is still pending in lower courts.
Justice Brett Kavanaugh attached a statement explaining why he voted against granting the stay. Justice Neil Gorsuch joined the statement.
Kavanaugh said the applicants “have shown a strong likelihood of success on the merits as to at least some of their challenges to the Environmental Protection Agency’s rule.”
But there was no need to deal with the case on an emergency basis, he added.
“Because the applicants need not start compliance work until June 2025, they are unlikely to suffer irreparable harm before the Court of Appeals for the D.C. Circuit decides the merits. So this Court understandably denies the stay applications for now.”
The D.C. Circuit is moving quickly and “should resolve the case in its current term.”
After the circuit court renders a decision, the unsuccessful litigants “could, if circumstances warrant, seek appropriate relief in this Court,” Kavanaugh said.
While forcing a shift from coal-based electricity generation to cleaner power production might be desirable, the EPA can’t pursue such a policy on its own initiative without the approval of Congress, the court said at the time.
The court’s decision on Oct. 16 to deny the emergency applications came after the court on Oct. 4 denied a separate set of emergency applications brought by energy-producing states and industry that asked the justices to pause EPA regulations limiting industry emissions of mercury and methane.
The nation’s highest court allowed the regulations to remain in effect, while challenges against them work their way through the lower courts.
The Biden administration created the regulations to address concerns related to the predicted negative impacts of climate change.
