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Is EPA Flouting the Supreme Court?

by Clark Packard / /

In February, the United States Supreme Court issued an unprecedented stay of the Environmental Protection Agency’s (EPA) controversial “Clean Power Plan” (CPP). The Court’s stay indicated two things: first, the Justices were concerned about the legal justifications for the rule, which EPA issued pursuant to the Clean Air Act. Second, the Supreme Court was chastened by the practical result of their 2015 decision in Michigan v. EPA.

In the Michigan case, the regulations in question were not halted as the case was litigated. After EPA lost the case, its response was troubling for those who believe in the rule of law. Specifically, EPA stated, “EPA is disappointed the Court did not uphold the rule, but this rule was issued more than three years ago, investments have been made and most plants are already well on their way to compliance.”  In other words, the rule that was struck down in Michigan v. EPA essentially took effect and imposed enormous costs on the utilities industry, despite lacking legal merit. In essence, EPA was able to circumvent judicial review simply because the regulatory process outpaced the judicial process.

In order to avoid a repeat of the Michigan v. EPA case, the Supreme Court ordered the EPA to halt further progress on the CPP until the case can be resolved on the merits.

Despite this unprecedented order, there is concern that EPA is once again continuing to work on implementing the CPP as the case is litigated. If this is occurring, EPA would be acting in direct contravention of the Supreme Court’s order. Last week, House Energy and Commerce Committee Chairman Fred Upton (R-MI) and Subcommittee Chairmen Ed Whitfield (R-KY) and Tim Murphy (R-PA) sent a letter to EPA Administrator Gina McCarthy asking for clarification of the agency’s CPP related activities following the stay.

National Taxpayers Union will continue to monitor the case and explain what it means for ratepayers across the country.