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Without Scalia, Long Fight Over Clean Power Plan Expected

Industry experts say a decision by the U.S. Supreme Court to temporarily block implementation of the Clean Power Plan (CPP) -- now one of the last actions by the high court to include conservative Justice Antonin Scalia -- remains in effect. A final decision on the law could be delayed until well after President Obama leaves office.

The sudden death of Scalia over the weekend immediately triggered a partisan debate that could impact the upcoming presidential election. At a debate Saturday, Republican candidates said Obama should not be allowed to nominate a successor to Scalia, and in a separate statement U.S. Senate Majority Leader Mitch McConnell (R-KY) agreed. Meanwhile, the Democratic candidates for president and their allies in Congress argue that Obama is allowed to nominate a successor and that the Senate is required under the Constitution to at least consider one. For his part, Obama said he would announce a nominee "in due time."

Last Tuesday, the high ruled 5-4 -- with Scalia among the majority -- that implementation of the CPP must wait until all legal challenges to the rule are resolved in appellate court (see Daily GPIFeb. 10a). Currently, 27 states have sued the U.S. Environmental Protection Agency (EPA) over the CPP, arguing that it is an overreach by the federal regulatory agency (see Daily GPIJan. 22).

On Tuesday, it was unclear if Senate Republicans were closing ranks with McConnell. In a statement Saturday, Senate Judiciary Committee Chairman Charles Grassley (R-IA) said "it's been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year.

"Given the huge divide in the country, and the fact that this president, above all others, has made no bones about his goal to use the courts to circumvent Congress and push through his own agenda, it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice."

But according to reports Tuesday, Grassley said he has not ruled out holding a confirmation hearing, and would wait until Obama names someone to fill the vacant seat on the bench.

With an intractable partisan deadlock in Congress, most of the Obama administration's energy policy decisions have come through the executive branch, often in the form of executive orders, such as those issued last December (see Daily GPIDec. 1, 2015). According to Christi Tezak, managing director of ClearView Energy Partners LLC, that arrangement elevated the federal court system to "the primary check" for the Obama administration's decisions, including the CPP.

"We have already discussed at length how the continuity of President Obama's environmental legacy could depend on the outcome of this year's presidential election," Tezak said in a note Saturday. "A Supreme Court vacancy immediately raises the stakes for that contest, and Senate confirmation of the nominee for Scalia's slot now elevates the importance of Republicans' efforts to defend their 54-46 Senate majority."

But Tezak said the stay against the CPP remains in place, adding that the appointment of a fifth justice, who could change the direction of the court, seemed unlikely in the near future. "The court can continue its business with eight justices," she said. "If President Obama nominates a justice Republicans find unacceptable, cohesion among their 54-vote majority could keep the ninth slot open until the next administration."

Attorney David Schnare of the Burke, VA-based Free Market Environmental Law Clinic, told NGI that Chief Justice John Roberts will ultimately have a say in whether the high court would consider a case with only eight justices.

"Because the [CPP] case won't get to the court until very late this year, or early next year, and because the granting of the stay meant that there was concern about the legality of the rule, it may well be held over until a new justice is brought on," Schnare said Tuesday. "If a Republican is elected [president], the rule will be withdrawn and the court case will be mooted. If a Democrat is elected, then the case will be decided by Justice [Stephen] Breyer, who may well go with the conservatives on this one."

Curtis Johnson, press secretary to West Virginia Attorney General Patrick Morrissey, told NGI on Tuesday that Justice Scalia's passing "unquestionably leaves a large void, but it's difficult to predict the impact his absence will have on any specific issue, including our challenge of the CPP.

"Scalia's successor, and the president who ultimately prevails in naming that person, remain unknown. In fact, the election of a president may have even greater impact given that person may rescind the CPP. Regardless of these unknowns, we remain confident in the strengths of our legal arguments. Our arguments are compelling on the merits and we remain hopeful the court will hand us a victory."

The U.S. Court of Appeals for the District of Columbia has ordered all parties in the case against the CPP to file final briefs by April 22, and to prepare for oral arguments beginning on June 2. Legal experts say that in the event of a 4-4 tie at the Supreme Court, the decision of the lower court is affirmed.

Brian Potts, an attorney with the Madison, WI-based law firm Foley & Lardner LLP, told NGI that after the stay was issued, he thought the EPA had a less-than-10% chance of prevailing through a judicial review at the Supreme Court. With Scalia's death, he now thinks the EPA has about a 75% chance of winning.

"The only way the Republicans can stop the CPP at this point is to not allow Obama to appoint a justice to the Supreme Court that would uphold it, then take the White House and appoint someone who would overturn it and/or change the law, assuming they had both houses of Congress as well," Potts said Tuesday. "Under any other scenario, EPA wins because the D.C. Circuit Court is more liberal-leaning.

"Even if the three-judge panel at the circuit court overturned it, which is unlikely, it would go en banc [to the entire appellate court], they would uphold it and then the Supreme Court couldn't do anything about it because they're deadlocked. But to be frank, the Supreme Court isn't going to decide this until February to April 2017, at the earliest."

The Obama administration unveiled the final version of the CPP last August (see Daily GPI, Aug. 3, 2015). The plan, which embraces renewables, solar and wind power, but not so much natural gas, calls for states to reduce emissions by 32% below 2005 levels by 2030.

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