United States Supreme Court Stays EPA Clean Power Plan

By Christina Sartorio

On February 9, 2016, the United States Supreme Court stayed the application of the U.S. Environmental Protection Agency (“EPA”) Clean Power Plan (“Plan”), pending the review by the United States Court of Appeals for the D.C. Circuit and the disposition of a writ of certiorari if one is ultimately sought. The Clean Power Plan, finalized on August 3, 2015, establishes state-by-state targets for carbon emissions reductions and offers a framework under which states may meet those targets. The Plan purports to reduce national electricity sector emissions by an estimated 32 percent below 2005 levels by 2030.

Under the Plan, states are required to submit a final plan, or an initial plan with a  request for an extension, to the EPA by September 6, 2016. These plans must detail the standards by which they intend to meet their assigned targets; extensions of up to two years, until September 6, 2018, may further be granted by the EPA.

New Jersey, which has one of the most stringent state goals in the final Clean Power Plan, has a 2030 goal of 812 pounds of emissions per megawatt-hour.  New Jersey’s Step 1 Interim Goal, for the period of 2022-2024, of 937 pounds per megawatt-hour reflects changes EPA made to provide a smoother glide path and less of a “cliff” at the beginning of the program.

On January 26, 2016, 29 states, including New Jersey, filed an application to the Supreme Court requesting a stay for the Plan while the U.S. Court of Appeals for the D.C. Circuit reviews its legality. Tuesday’s Order granted the states’ application.

The Court of Appeals is expected to issue its decision in late summer or fall of this year.