The Clean Power Plan, The Courts, and the 2016 Election

On August 3, 2015 President Obama, in conjunction with the EPA, announced the Clean Power Plan, a plan to reduce carbon emissions as a result of power generation and step towards concrete action to reduce climate change. On that day the president stood with EPA administrator Gina McCarthy and proclaimed the CPP as

“…the single most important step America has ever taken in the fight against global change.”

That announcement took place just over nine months ago, but given the current 24-hour news cycle and one of the most bizarre elections in modern history nine months might as well be nine years. So what, exactly, is the CPP, what has become of it, and what is likely to happen with it in the future?

WHAT IS THE CPP?          

  • The CPP is a result of two years of development by the McCarthy’s EPA and it’s main goal is to reduce carbon emissions from energy-generating plants.
  • The CPP was implemented under authority of section 111 of the Clean Air Act, which gives the EPA authority to control pollution from stationary sources.
  • The CPP gives individual states many options on how to meet goals for emission standards, including investing in renewable energy, implementing energy efficiency policies and working to make coal-fired power plants themselves cleaner.
  • The CPP is a perfect example of cooperative federalism (working together of state, federal and local governments) as the federal government sets goals for emission reductions and then works with state and local governments to set ways to meet those goals.

WHAT HAPPENED?           

  • On Tuesday, February 9 the US Supreme Court ruled to issue a stay, which stopped actions to implement or enforce the CPP pending a ruling regarding the CPP’s legality in the US Court of Appeals for the DC circuit. Finding against the stay were Justices Ginsburg, Breyer, Sotomayor and Kagan. Finding in favor of the stay were Justices Kennedy, Thomas, Roberts, Alito and the now deceased Justice Scalia.
  • The Appeals Court will be hearing oral arguments on June 2 of this year regarding the legality of the CPP.
  • The stay doesn’t kill the CPP, it just stops it from being implemented until it can be ruled upon by the DC circuit court.
  • The request for the stay was only heard by the Supreme Court after being denied by the DC Circuit court, which will be ruling on the CPP’s legality, however this is not necessarily a sign that the DC court will rule in favor of the CPP.


  • The DC Circuit court will hear arguments starting on June 2 and is expected to rule by the end of the year. However…
  • It is widely expected that whatever decision is rendered by the appeals court will be challenged and heard by the Supreme Court.
  • The passing of the stay had suggested to some that the Supreme Court (as it was composed at the time) would be likely to rule against the CPP. However…
  • Just four days after the stay was approved, on February 12, Justice Antonin Scalia passed away, leaving a vacated seat on the court, a seat which could swing the majority opinion towards accepting the CPP.


  • If the Supreme Court justices rule on the legality of the CPP the same way they did on whether to issue the stay the judge appointed to replace Justice Scalia will be the swing vote on the CPP, so we can see three possible options:
  • Merrick Garland: President Obama’s nominee, served on the Court of Appeals for the DC district and is widely considered to be a moderate choice. It’s hard to say how he will rule, but in 2010 Tom Goldstein wrote on SCOTUSblog

On environmental law, Judge Garland has in a number of cases favored contested EPA regulations and actions when challenged by industry, and in other cases he has accepted challenges brought by environmental groups.”

  • Garland’s centrist leanings make him the biggest wildcard of the three possible nomination scenarios.
  • Hillary Clinton’s nominee. If Clinton becomes president her nominee could come from a large pool, but if looking at her statements on the CPP suggest she would be likely to nominate a candidate who would defend Obama’s environmental legacy, taken from her campaign’s website

“The Obama Administration’s Clean Power Plan is a significant step forward in meeting the urgent threat of climate change. It sets a smart federal standard that gives states the flexibility to choose how to reduce carbon pollution most effectively. And it drives investments in clean energy and energy efficiency, reduces asthma attacks and premature deaths, and promotes a healthier environment and a stronger economy. It’s a good plan, and as President, I’d defend it.”

  • Donald Trump’s nominee. If Trump is able to shock the establishment and become the 45th president it is highly likely that his supreme court nominee would lean right, and we can get a clear idea of how he feels about the importance of the EPA from the March 3 GOP debates when he said

Department of Environmental Protection (sic). We are going to get rid of it in almost every form. We’re going to have little tidbits left but we’re going to take a tremendous amount out.”

While the CPP lays dormant, unable to be implemented or enforced one of the strangest elections of all time is playing out, and one of it’s first major consequences may be the future of the Supreme Court’s makeup. As a full confirmation hearing of Merrick Garland seems more and more unlikely there is a clear implication that who wins the general election this fall will determine the future Obama’s attempt to leave a legacy of cleaner power generation and two years worth of the EPA’s work towards reducing carbon from the atmosphere.





FACT SHEET: Clean Power Plan Key Changes and Improvements. (2016). Retrieved May 05, 2016, from


FACT SHEET: Overview of the Clean Power Plan. (2016). Retrieved May 05, 2016, from


Remarks by the President in Announcing the Clean Power Plan. (2015). Retrieved May 05, 2016, from


Statement from Hillary Clinton on President Obama’s Clean Power Plan. (2016). Retrieved May 05, 2016, from


The Clean Power Plan: A Climate Game Changer. (2016). Retrieved May 05, 2016, from


The Fox News GOP debate transcript, annotated. (2016). Retrieved May 05, 2016, from


The Potential Nomination of Merrick Garland. (2010). Retrieved May 05, 2016, from


Who is Merrick Garland? (2016). Retrieved May 05, 2016, from