One of the witnesses testifying before the U.S. Senate Committee on Environment and Public Works on June 9 believes states and regulated entities will be granted additional time to comply with the Environmental Protection Agency’s (EPA’s) Clean Power Plan (CPP), if the rule is ultimately found to be lawful.

Currently, the U.S. Supreme Court has granted a stay of the rule, which means that the CPP, although finalized, has no legal effect. A stay of an administrative action maintains the status quo during the time that the court considers the legality of the action. Any and all obligations are effectively void and neither states nor regulated entities can be penalized for refusing to comply with any requirement or deadline in the rule.

Unusual Situation

According to Allison Wood, partner in the law firm Hunton & Williams LLP and one of the witnesses at the hearing (Figure 1), stays of federal regulations are very rarely granted by any court. She said the Supreme Court only grants a stay when there is a reasonable probability that four justices would consider the issue one on which they would grant review, there is a fair prospect that a majority of the court would vote to strike down the rule at issue, and there is a likelihood that irreparable harm would result without a stay.…

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