On February 9, 2016 the U.S. Supreme Court issued a stay for the Environmental Protection Agency’s (EPA) Clean Power Plan (CPP) until the litigation surrounding it is resolved. Justices Kennedy, Alito, Thomas, Scalia and Chief Justice Roberts voted in favor of the stay. Justices Ginsburg, Breyer, Sotomayor and Kagan voted to deny the application. This stay halts the implementation of the CPP. Under the original schedule promulgated by EPA, states would have had to submit initial plans for implementation by June 30, 2016 and could receive a one-year extension on submitting a final plan. It is unclear if those deadlines will change due to the stay.
The outcome on the legality of the CPP is also in flux with the sudden death of Justice Antonin Scalia last Saturday, February 13. As noted earlier Justice Scalia voted in favor of the stay and was seen as likely to be a part of the bloc of justices voting against the CPP should it make it to the high court. With his death and the potential for President Obama to replace him with a more liberal justice the future of the CPP is up in the air.
On Monday, February 15, Governor Walker signed Executive Order # 186, which prevents state agencies from implementing portions of the CPP until the Supreme Court lifts their stay. Thus while the Supreme Court, essentially, said EPA cannot force implementation prior to the resolution of litigation. Executive Order # 186 says state agencies cannot voluntarily participate in implementation prior to the resolution of litigation. However, the State has taken some steps that can be seen as being preparations to comply, including the passage of AB 384 lifting the moratorium on constructing nuclear power plants in the state.
The D.C. Circuit is not expected to rule on the CPP litigation before summer at the earliest.