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Justice Scalia’s Death Scrambles EPA Power Plant Litigation

The death of Supreme Court Justice Antonin Scalia on 13th February has quickly ended jubilation among opponents of the EPA’s greenhouse gas rule for existing power plants over the Supreme Court’s stay of the rule on 9th February.  Most legal observers who have made public comments, but certainly not all, expect the three-judge panel on the D. C. Circuit Court of Appeals to uphold all or most of the rule.  On the other hand, the 5 to 4 Supreme Court decision to stay the rule raised hopes that there were five votes to overturn the rule on appeal. 

Justice Scalia’s death upends that calculation.  There are now only four Justices who thought that the rule was sufficiently unlikely to survive in court to issue an unprecedented stay. If the circuit court upholds the rule, then a 4 to 4 vote in the Supreme Court would not overturn the lower court.  Of course, President Barack Obama could nominate and the Senate could confirm Scalia’s replacement before the Supreme Court takes up the appeal.  Or nominating and confirming a replacement could be delayed until a new President and the 115th Congress are sworn in next January.

While everything is up in the air, the D. C. Circuit Court’s deadline for the initial briefs by the plaintiffs in the case was today, 19th February.  Thomas Lorenzen, an attorney at Crowell and Moring who represents plaintiffs in the case, said in a video interview with Environment and Energy Publishing before Scalia’s death that he expects the power plant rule will be overturned in court.  Lorenzen’s opinion is significant because he worked as an environmental litigator at the Department of Justice from 1997 to 2013.  From 2004 to 2013, he was the assistant chief of DOJ’s environment and natural resources division where he successfully led EPA’s defense in Massachusetts v. EPA, EPA’s endangerment finding, and a number of other high profile appeals.

Here is what Lorenzen told E & E TV (subscription required) before Scalia’s death: “My personal opinion is the power plan is not going to survive. I think that EPA overreached in its attempt to use Section 111(d) to achieve reductions from things other than the sort of technological and operational measures that have traditionally been understood to be the tools you can use for individual plants. Trying to transform the energy sector, trying to go beyond the fence line and say that a plant can do what its owners or operators can do -- invest in renewables, transfer generation from higher-emitting to lower-emitting sources, training programs -- does not appear to be what Congress contemplated in Section 111(d). So I think EPA's got some hard times ahead of it on this one.”