by Lisa Heinzerling, Justice William J. Brennan, Jr. Professor of Law, Georgetown University Law Center. This post draws from Heinzerling’s article, "The Supreme Court's Clean-Power Power Grab," to be published in the Georgetown Environmental Law Review in May 2016.
The Environmental Protection Agency's "Clean Power Plan" establishes emission guidelines for states to follow in regulating carbon dioxide from existing power plants. Many states and industry groups have challenged the rule in the D.C. Circuit. Some of the challengers asked the D.C. Circuit to stay the rule pending the court's review, but the D.C. Circuit declined, explaining that the challengers had not met the strict requirements for such relief. The challengers then moved on to the Supreme Court, filing five separate applications to stay EPA's rule pending judicial review in the D.C. Circuit. The applicants for a stay did not file petitions for certiorari or indicate that they intended to file petitions for certiorari, and they did not challenge the D.C. Circuit's decision denying a stay. Instead, they challenged the Clean Power Plan itself and asked that it be stayed pending initial judicial review of the rule in the D.C. Circuit. No party weighing in on the applications for a stay, either in favor or opposed, was able to identify any previous case in which the Supreme Court had stayed the application of a nationally applicable agency rule before any court had reviewed it. Nevertheless, the Court granted the stay.
The unique posture of the case creates uncertainty about the jurisdictional basis for the Court's action. In its terse, identical orders granting the five applications for a stay, the Court did not identify the source of its power to hear the case. Moreover, the five different sets of applicants for a stay did not agree among themselves about the source of the Supreme Court's authority to hear the case and issue a stay. The applicants' disarray reflects the uncertain jurisdictional basis for the Court's orders.
The applicants for a stay cited, in varying configurations, four different statutory provisions which, they asserted, gave the Supreme Court jurisdiction to hear the case: 5 U.S.C. § 705 (Administrative Procedure Act's provision on stays of administrative action), 28 U.S.C. § 2101(f) (on stays pending the filing of petitions for writs of certiorari), 28 U.S.C. § 1254(1) (on certiorari jurisdiction), and 28 U.S.C. § 1651(a) (All Writs Act).
Did one of these statutory provisions give the Supreme Court the power to stay the Clean Power Plan? I don't think so. Let's take them one at a time.