Supreme Court Stays Implementation of Clean Power Plan

The U.S. Supreme Court has stayed the Clean Power Plan's requirement to slash carbon emissions from existing power plants pending judicial review of its constitutionality. On behalf of Peabody Energy Corporation, Shook, Hardy & Bacon Partner Tristan Duncan worked with Harvard Professor and constitutional scholar Laurence Tribe to challenge the plan.

The stay prevents the U.S. Environmental Protection Agency from implementing the carbon emissions rule until the U.S. Court of Appeals for the D.C. Circuit issues a judgment on its legality and the Supreme Court weighs in again. The Supreme Court agreed with the brief’s argument that energy companies have shown irreparable harm—including closures of power plants attributable to the Power Plan—and that energy companies have shown a reasonable probability of prevailing on the merits of their arguments.

Law360 detailed the mounting opposition to the Clean Power Plan, including Duncan's work with Peabody Energy, and Duncan spoke with the Kansas City Business Journal about the ruling. "Never before had the Supreme Court ever stopped the implementation of a rule pending judicial review," she told the journal. "The fact that the Supreme Court issued a stay is an indication that several of the justices have serious doubts as to the legality of this rule."

A similar stay would have helped Peabody Energy in Michigan v. EPA, which struck down limits on power plant emissions of mercury. The company was forced to comply with unconstitutional regulations for three years before the Supreme Court ruled. "If you allow the government to essentially manipulate the procedure by which you get judicial review, so that it's an academic exercise rather than practical and meaningful relief, it's going to diminish our judiciary's power and influence," Duncan told the Kansas City Business Journal. "That has Constitutional separation of powers impact, if the executive branch can essentially force compliance of unlawful rules to the point that a judicial review is essentially meaningless."

Murray Energy v. EPA, No. 15A776 (U.S. 2016).