This should be interesting. One state after another have been pushing back on the new EPA carbon emission guidelines, with many of them refusing to file a plan for compliance until the courts have weighed in. Now some of the biggest energy producing states are trying to bring the situation to a head well in advance of the normal challenge and appeal process. Led by West Virginia and Texas, 26 states have filed a request directly with Supreme Court Chief Justice John Roberts asking him to step in and put the regulations on hold while the situation gets sorted out. (Yahoo News)

A group of U.S. states led by coal producer West Virginia and oil producer Texas on Tuesday asked the U.S. Supreme Court to put a hold on President Barack Obama’s plan to curb carbon dioxide emissions from power plants to combat climate change.

The 26 states filed a stay application with U.S. Chief Justice John Roberts after an appeals court in Washington declined last week to block Obama’s Clean Power Plan while litigation over its lawfulness goes ahead.

“If this court does not enter a stay, the plan will continue to unlawfully impose massive and irreparable harms upon the sovereign states, as well as irreversible changes in the energy markets,” lawyers for the states said in the latest filing.

Asking for an injunction is nothing unusual, but the direct path to the top makes this one far more high profile. Roberts has a number of options at this point and it’s tough to predict which way he’ll go. The request essentially skips over the legislative branch and drags the top of the judicial branch into one of the assumed powers of the executive. As a matter of courtesy, Roberts could ask the White House to weigh in with their own response before taking up the question. If he passes on that course of action, he could choose to either approve or deny the injunction on his own or summon the rest of the Supreme Court Justices in to debate it. There also doesn’t seem to be any fixed deadline for action, so this mess could drag on for quite a while longer.

For a bit of recent history, this move came only one week after the DC Circuit Court refused a similar request. The American Energy Alliance weighed in on the subject with a demand for a reasonable ruling.

As most following the controversial carbon rule know, last Thursday the DC Circuit denied a request from 27 states and dozens of private parties to stay, or freeze, the rule until the court has a chance to rule on its legal merits. The decision was not altogether that surprising, given the makeup of the DC Circuit and the seemingly boundless deference given to federal agencies to regulate the environment. Nevertheless, the carbon rule is a model case for a stay to be issued, and the case law cited by the DC Circuit to support their decision (Winter v. NRDC) has no applicability to the situation in this case.

Beyond the case for a stay, states challenging the carbon rule should remain steadfast. The stay decision did not consider the merits of the case against EPA, which are strong as ever. In addition, this decision does not change the fact that the best way to protect the American people from higher electricity prices is for states to make no binding commitments to implement the carbon rule before full legal resolution.

They’re citing the Winter v. NRDC case as precedent and it may not sound like a direct fit, but the underlying argument does seem to parallel the situation with the carbon emissions rules. In Winter there was a request made to stop the United States Navy from conducting certain training exercises because environmental groups claimed that they would endanger various types of marine life. The Ninth Circuit Court granted the injunction ordering the Navy to stand down, but the Supreme Court overruled them. Their argument at that time was that the plaintiffs needed to be able to show clear, imminent and irreparable harm and that such harm had to outweigh the interests of the public. A well trained Navy was deemed to be in the greater public interest.

In this case the public interest is the harm to the public through rapidly increasing energy prices and the threat to the stability of the power grid if suppliers are forced to go offline. (We’re already seeing that in Minnesota.) Hopefully John Roberts will take these arguments under consideration as he prepares to rule on this.

Coal Power Plant