The Supreme Court’s stay of Obama’s “Clean Power Plan” yesterday is fairly unusual. But it may have come about because the EPA essentially dared the judiciary to stop it. Jonathan Adler has some useful observations up on this point at The Volokh Conspiracy yesterday:
Looking back over the various stay applications, I suspect that the EPA’s arguments against the stay were undermined by the Agency’s own statements about the potentially revolutionary nature of the CPP. In promoting the plan, the EPA repeatedly emphasized that the CPP represented the most ambitious climate-related undertaking in the agency’s history and crowed that the plan would lead to the complete restructuring of the energy sector. Making these claims may have undermined the EPA’s position, because it made it easier for the stay applicants to argue that a stay was justified. Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action.
Jon directs our attention to the analysis of Michael Greve at LibertyLaw, noting that the EPA had bragged about evading capture by the Supreme Court in a similar case. Michael quotes from one of the briefs of the litigants that brought the suit:
This Court’s decision last Term in Michigan v. EPA, 135 S. Ct. 2699 (2015), starkly illustrates the need for a stay in this case. The day after this Court ruled in Michigan that EPA had violated the Clean Air Act (“CAA”) in enacting its rule regulating fossil fuel-fired power plants under Section 112 of the CAA, 42 U.S.C. § 7412, EPA boasted in an official blog post that the Court’s decision was effectively a nullity. Because the rule had not been stayed during the years of litigation, EPA assured its supporters that “the majority of power plants are already in compliance or well on their way to compliance.” Then, in reliance on EPA’s representation that most power plants had already fully complied, the D.C. Circuit responded to this Court’s remand by declining to vacate the rule that this Court had declared unlawful. […] In short, EPA extracted “nearly $10 billion a year” in compliance from power plants before this Court could even review the rule […] and then successfully used that unlawfully-mandated compliance to keep the rule in place even after this Court declared that the agency had violated the law.
It’s like the EPA said to the Supreme Court, “Nyah, nyah, you can’t stop us!” Even for Chief Justice John (I See Nothing Wrong with the Statute) Roberts, this is too much.
Incidentally—or is it a bonus!—this ruling may nuke the Paris climate accord. Now if we could just bring back nukes (power that is).