On February 9, 2016, the U.S. Supreme Court granted a stay of the Clean Power Plan requested by 29 states and state agencies, coal companies, utilities, and several trade associations. News of the order granting the stay spread like wildfire across the nation, having become a top news story overnight.
The road to the historic stay order began less than 12 hours after US EPA officially published the Clean Power Plan in the Federal Register. On October 23, 2015, it was met with an influx of legal challenges and motions to stay the rule and expedited briefing.
On January 21, 2016, the D.C. Circuit denied motions to stay the rule, but granted expedited briefing and scheduled oral argument for June 2, 2016. But that was far from the final word on the matter.
In less than a week after the D.C. Circuit decision, challengers filed five applications with the Chief Justice of the Supreme Court requesting a stay of the Clean Power Plan. As Solicitor General Donald B. Verrilli Jr. wrote in EPA’s Supreme Court stay brief, the requests sought “extraordinary and unprecedented” relief from the High Court.
Given the considerable interest in the novel and successful applications, this post provides details on how the applicants obtained the stay. The process of obtaining a stay of the Clean Power Plan was not unlike the process for filing a stay of execution.
Applications for Stays in the U.S. Supreme Court
Requesting a stay from the U.S. Supreme Court is an original action, not an appeal of the lower court decision denying a stay, so the process is quite different from most federal filings.
The first step is to make a phone call to the applications clerk as soon as the decision to file a stay application has been made to let the Court know it is on the way. After receiving an applicant’s call, but often before the application is even filed, the clerk begins retrieving and reviewing the record below to get a head start.
Here, multiple parties filed stay applications. On January 26, 2016, just 5 days after the stay was denied by the D.C. Circuit, 29 states and state agencies led by West Virginia, filed the first application. The following day on January 27, members of the coal industry, led by Murray Energy Corporation; utilities, led by Basin Electric Power Cooperative; and business associations, led by the US Chamber of Commerce, all filed the next wave of applications. On January 29, North Dakota filed an application.
The stay applications were specifically addressed to Chief Justice Roberts because he is the Justice who oversees the District of Columbia Circuit. For a Justice to grant a stay pending judicial review by the lower court, an applicant must show (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse the judgment below; and (3) a likelihood that irreparable harm will result from the denial of a stay.
After the applications were submitted, the parties received the first good sign the next day on January 27, 2016 when Chief Justice Roberts called for a response from the Solicitor General. The Chief Justice gave the Solicitor General a deadline of 3PM EST on February 4, 2016.
The Solicitor General filed a response opposing all of the stay applications 11 minutes before the deadline on February 4. The government’s opposition was supported by two briefs filed in one opposition by 18 states and 7 municipalities or public entities, and a second opposition composed of advanced energy associations, nonprofit public health and environmental organizations, and power companies.
Given the speed with which the Court disposes of stay applications, the applicants filed replies the very next day on February 5, including 9 declarations from state officials responding to factual assertions in the government’s brief.
With the stay applications fully briefed, the Chief Justice then referred them to the full Supreme Court on February 9, and they were granted the same day. In all, it took 19 days for the Supreme Court to issue the stay after a stay was denied by the D.C. Circuit.
Now that the stay has been granted, states and industry can rest a bit easier knowing the Clean Power Plan will not be implemented while the litigation proceeds. However, there is still much work to be done in the coming months. The D.C. Circuit has asked that challengers submit their initial briefs on February 19, 2016 and final briefs on April 22, 2016. Oral arguments in the D.C. Circuit are set for June 2, 2016.