While the SCOTUS denies request to block EPA power plant rule, challengers vow to continue fight

The Supreme Court ruled against a bid to block the EPA’s power plant rule while legal challenges make their way through the courts, but West Virginia, which is leading the coalition of states challenging the rule, vows the fight isn’t over. 

In a brief order, Justices Brett Kavanaugh and Neil Gorsuch said that the applicants “have shown a strong likelihood of success on the merits as to at least some of the challenges to the” EPA’s rule.

However, the justices explained, the stay wasn’t needed because compliance requirements wouldn’t begin until June 2025, which means the applicants wouldn’t “suffer irreparable harm” before the Court of Appeals for the D.C. Circuit decides the merits of the case. Injunctive relief, such as sought here, requires clear and convincing proof that the harm be immediate and irreparable.

The lower court is expediting the case, the justices noted, meaning it would be resolved in the court’s current term. Afterward, the case would still have time to return to the Supreme Court, if it's warranted. 

The EPA rule, which was finalized in April, requires that coal-fired power plants be fitted with carbon capture technology controlling 90% of their carbon dioxide emissions by 2039, and new gas-fired power plants will need to do the same starting in 2035, depending on the amount of runtime they have. 

Energy analysts Isaac Orr and Mitch Rolling revealed that the EPA failed to do a proper analysis of the impacts of the rule, and if implemented, over 5 million people will experience blackouts, some lasting for 41 hours. While the EPA has defended the rule and argues that carbon capture is “well proven,” its own modeling showed it expected only one coal plant and no gas plants to be fitted with the technology as far out as 2055. 

Two dozen states led by West Virginia filed a lawsuit against the EPA in May, arguing that the agency exceeded its authority with the rule. Utilities and industry groups also filed legal challenges to the rule. In July, the U.S. Court of Appeals for the D.C. Circuit denied the parties’ requests to block the rules while the courts considered the challenges, and the court ruled the applicants wouldn’t succeed on the merits of their case.

In court filings, the EPA noted that the lower court ruled the applicants are unlikely to succeed in arguing the agency exceeded its authority, and it stood by the rule and its carbon capture requirements, arguing that the technology has been “adequately demonstrated.” 

West Virginia Attorney General Patrick Morrisey said in a statement on the high court’s ruling that the fight isn’t over.

“This is not the end of this case: we will continue to fight through the merits phase and prove this rule strips the states of important discretion while forcing plants to use technologies that don’t work in the real world,” Morrisey said. 

In 2022, the Supreme Court had sided with West Virginia and other states in a challenge to the Obama-era "Clean Power Plan." Morrisey said that the high court had made clear limits to what the EPA can do, and the Biden administration’s “green new deal agenda” is ignoring those limits. 

“This rule is yet another attempt of unelected bureaucrats to push something the law doesn’t allow,” Morrisey said.

Indiana, Alabama, Alaska, Arkansas, Florida, Georgia, Idaho, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Texas, Utah, Virginia, and Wyoming joined the application to the Supreme Court.