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Clean Power Plan: The Supreme Court's Surprise

On Tuesday, February 9, the Supreme Court stayed the Clean Power Plan (CPP), much to everyone's surprise. The Supreme Court issued a terse order, less than a page long. It gave no explanation and no indication of the thinking of the five Justices who voted for the stay. The Supreme Court has never before granted a stay of any federal regulation while it was under review by a lower court. What are the implications for Wyoming?

The stay brings everything about the CPP to a screeching halt. It is like a hold in the countdown of a rocket launch. The deadline for states to file their State Implementation Plan (SIP) was September, 2016, seven months hence. The day before the stay, that deadline was at T minus seven months and counting. With the stay, it is now at T minus seven months and holding. When the stay is lifted, if the CPP isn't voided by the final ruling, the deadline will still be seven months away, and counting. Again, if the Supreme Court upholds the CPP.

EPA Administrator Gina McCarthy agrees. Speaking to a congressional committee, McCarthy said, “Nothing is going to be implemented while the stay is in place. It is clearly on hold until it resolves itself through the courts.”

To get a stay, those making the request must show two things.

They must show that letting the rule continue will cause “irreparable harm”, a harm that cannot be fixed. The Wyoming Department of Environmental Quality (DEQ) is requesting $550,000 for the 2017-18 budget to prepare for the rule. It is in the House and Senate budget bills as of this writing (February 20th), although Senate amendment SF0001S3035 to prohibit DEQ from spending it on the CPP was successful.This is exactly the sort of irreparable harm that should have had the court issue the stay of execution.

“Without Supreme Court intervention, West Virginia and other states will suffer irreparable harm as job creators and state agencies spend untold resources to comply with a rule that is likely to be struck down as illegal,” West Virginia Attorney General Patrick Morrisey said. “Real people are hurting in West Virginia and it's my job to fight for them.” The DEQ's $550,000 request is the tip of that compliance iceberg.

The other thing the request must show is that the underlying suit has a reasonably good chance of succeeding. In essence, the Supreme Court agreed with the plaintiffs that they had a chance to win.

So if there is a good chance that the Clean Power Plan will be overturned, is it prudent for the state to continue work on the CPP before the stay is lifted? In a time when Wyoming's budget is under great strain – ironically due in part to the sorts of policies that produced the CPP – is it wise to spend money we aren't required to spend?

Consider the likely results of the CPP, as described elsewhere in this series of blogs:

  • Higher energy costs for Wyoming working families and especially for Wyoming's poor, 23% a year from now to 2030.
  • Further damage to Wyoming's struggling coal industry.
  • Destabilize the grid in Wyoming and the country.
  • No measurable impact on climate change over the next 84 years.

The House-Senate Conference Committee should uphold Amendment SF0001S3035 and the full legislature should agree.

Update: When I wrote this, I referred to Senate Amendment SF0001S2003. The Senate replaced that with SF0001S3035 on Friday, February 19th, and the blog now reflects the later amendment.

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