Vol. 1: “If It’s Stayed, Why Should I Go?”
Brendan K. Collins is a partner with Ballard Spahr LLP with extensive experience in the electric power sector. He is a member of Ballard’s environmental, energy and appellate litigation practice groups. Brendan has served as lead counsel for a group of energy companies in litigation before the D.C. Circuit and Supreme Court concerning the Mercury and Air Toxics Standards and the Cross-State Air Pollution Rule.
On February 9, the Supreme Court granted applications for a stay of the Clean Power Plan until the conclusion of the currently pending case in the D.C. Circuit and the conclusion of any review of the D.C. Circuit's decision by the Supreme Court. The five conservative justices (Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito) voted for the stay, while the four liberal justices (Justices Ginsberg, Breyer, Sotomayor and Kagan) voted against. No information was given as to the Court's rationale.
Four days later, Justice Antonin Scalia, a cornerstone of the conservative wing of the Supreme Court and one of the five justices who voted for the stay, passed away, leaving the Court evenly divided. Much has been said and written about the process of nominating and confirming Justice Scalia's successor, but that is not the subject of this article. This article offers a view of the trajectory of this dispute to help utilities assess the timeline on which they might - or might not - need to comply with Clean Power Plan-driven state law requirements, when they can hope to know, and what they ought to be doing in the meantime.