By Robert F. Lawrence and Robert Loeb

Last week, we wrote about the Supreme Court's unprecedented issuance of a stay prohibiting the implementation of the "Clean Power Plan" while a judicial challenge to the Plan is pending.  The extraordinary stay decision garnered five votes—those of the Chief Justice, and Justices Scalia, Kennedy, Thomas, and Alito—and signaled that these five Justices believed that the challenge to the Plan had at least a "fair prospect" of success.  On the night of February 12, 2016, just two days after the stay was issued, Justice Scalia passed away.  Justice Scalia's death raises many questions about the future course of the litigation and the ultimate disposition of the Clean Power Plan.

The Clean Power Plan is a regulation aimed at reducing greenhouse gas emissions from power plants that was issued in final form by the U.S. Environmental Protection Agency on October 23, 2015.  The regulation was promptly challenged by many parties, including industry, trade associations and representatives of a large number of states.  The challenge is currently pending before a three-judge panel in the U.S. Court of Appeals for the D.C. Circuit.  Under the D.C. Circuit's expedited schedule, oral arguments are scheduled for June 2, 2016 and a decision from the panel could be issued as early as the fall of 2016.

Last week, the Supreme Court stayed the implementation of the Clean Power Plan until the Supreme Court itself either declines to review the Plan (i.e., denies a "petition for certiorari") or reviews the rule and issues a decision on the merits of the dispute.  This update addresses how a vacant seat or new Justice could affect the Supreme Court's handling of the case.

The death of Justice Scalia probably does not have immediate implications for the stay.  The Solicitor General could ask the Court to reconsider its decision granting the stay on or prior to March 7, but a decision to lift the stay would require a majority.  Based on the Court's vote to impose the stay, we can expect that at least four of the eight Justices would decline to lift the stay.  Accordingly, the Solicitor General is unlikely to ask the Supreme Court to reconsider the stay. 

Whether and how subsequent actions by the Court are affected by Justice Scalia's passing depends in part upon whether a new Justice is confirmed at the time the decisions are made.  The soonest that the Supreme Court is likely to receive a petition for certiorari is approximately 180 days after the D.C. Circuit issues its decision.  (This timing is driven by a 90-day deadline for filing the petition for certiorari, a likely period of 60 days to respond, at least 14 days to reply, and the time it takes the Court to consider the petition.)  If the D.C. Circuit issues its decision as early as September 2016, then a petition for certiorari could be considered by the Supreme Court as soon as March 2017.  In that case, it is possible that a new Justice will not yet be confirmed when the Court considers the petition.

But there are several ways in which this timetable could be delayed, making it more likely that a new Justice can be confirmed in time to consider a petition for certiorari.  The D.C. Circuit panel could issue its decision later than expected, which would delay action by the Supreme Court by an equivalent period.  In addition, after the D.C. Circuit panel issues a decision, the losing party could (and likely would) ask the full D.C. Circuit to rehear the case (called en banc review).  The request for review could extend the total review period by three months or more, and, if en banc review were granted, the timeline would be extended for approximately six to twelve months.  The Supreme Court could also extend the time for filing a petition for certiorari.  Any of these intermediate steps (or a combination of them) could lengthen the total judicial review process by twelve months or more, increasing the chances that a new Justice would be confirmed before the Court considers a petition for certiorari in the case.   

Whether a new Justice is appointed and confirmed may not matter for the petition for certiorari, because such petitions can be granted by a vote of only four Justices.  Based on the Supreme Court's vote on the stay, if the D.C. Circuit decision upholds the Clean Power Plan, we can expect the remaining Justices who granted the stay to vote also to grant the petition for certiorari.  If, on the other hand, the D.C. Circuit vacates or remands EPA's Clean Power Plan, the four Justices who did not vote for the stay could vote to grant certiorari, and it seems likely that they would do so given the importance of the case.  In either event, the addition of a new Justice probably would not materially change the vote on the petition for certiorari, because whichever way the D.C. Circuit decides the case, there will be at least four Justices who are likely to wish to review the decision.

Justice Scalia's death may have much larger implications for the Court's ruling on the validity of the Clean Power Plan.  If the Supreme Court grants certiorari in early 2017, then the earliest it would hear oral argument on the case is likely to be the fall of 2017, with a decision in the spring of 2018.  It is theoretically possible that a new Justice would not be confirmed at the time of oral argument (which would be an unprecedented delay in nominating and confirming a new Justice).  If a new Justice is not named in time to hear the case, then the Court could either decide the merits of the case with just eight Justices, or order that the case be reargued when a new Justice is appointed.  A tie decision on the merits would have no effect on the D.C. Circuit's decision – meaning that whatever the D.C. Circuit decided would remain in effect, and the Supreme Court's tie in the case would not establish any precedent that would govern future lower court rulings. 

It is much more likely, however, that before the Supreme Court rules on the merits of the case, a new Justice will be confirmed to replace Justice Scalia.  The merits of the case are therefore likely to be determined in a Court where the new Justice is an influential—if not the deciding—vote on the disposition of the Clean Power Plan.  As a result, if a replacement for Justice Scalia is not nominated by the President and confirmed by the Senate during the remaining term of the Obama administration, then the upcoming Presidential election may very well determine the disposition of the Clean Power Plan.

Robert F. Lawrence
Energy and Environment
rlawrence@orrick.com
(202) 339-8430

Robert Loeb
Supreme Court & Appellate Litigation
rloeb@orrick.com
(202) 339-8475