If at First You Don’t Succeed, Try, Try Again

UPDATED 1/27/2016 PM with response deadline date
UPDATED 2/1/2016 with additional applications

Following on the heels of the D.C. Circuit’s denial to stay the CPP, twenty-nine states and state agencies are taking their fight to a higher power.  On January 26, the coalition filed an application for stay with Chief Justice Roberts, the allotted Justice for the D.C. Circuit Court of Appeals, alleging that a failure to stay will “impose massive and irreparable harms upon the sovereign States, as well as irreversible changes in the energy markets.”  In support of their application, Petitioners reference the Court’s remand of the Mercury and Air Toxics Standards (MATS) and the D.C. Circuit’s ensuing decision not to vacate the rule pending remand, claiming that because MATS has not been stayed during the years of litigation, EPA “extracted” compliance from power plants.  The docket number for the case is 15A773.

Petitioners bore a heavy burden in seeking a stay with the D.C. Circuit; the bar is even higher now.  The applicants must show that SCOTUS has authority to stay the CPP pending resolution of the D.C. Circuit’s decision on the merits of the case, and if jurisdiction is found, they must show that they meet the legal standard for a stay.  Applicants have forwarded two alternative jurisdictional bases for granting a stay: the Administrative Procedure Act (APA), 5 U.S.C. § 705, or alternatively, a writ of mandamus pursuant to the All Writs Act, 28 U.S.C. § 1651(a).

To obtain a stay under the APA, the applicants must show: (1) a reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari; (2) a fair prospect that a majority of the Court will vote to reverse an appellate court ruling upholding the statute below; and (3) a likelihood that irreparable harm will result from the denial of a stay.

To obtain a writ of mandamus, which is considered to be an extraordinary form of relief, the applicants must establish that: (1) the writ will be in aid of the Court’s appellate jurisdiction, (2) that exceptional circumstances warrant the exercise of the Court’s discretionary powers, and (3) that adequate relief cannot be obtained in any other form or from any other court; and they must further show a fair prospect that a majority of the U.S. Supreme Court will vote to grant mandamus and a likelihood that irreparable harm will result from the denial of a stay.

These are stringent legal standards; it is highly unlikely (though not impossible) that the application will be granted.

Given the number of motions for stay that were filed before the D.C. Circuit, additional “piggyback” applications may be filed by other parties.  Indeed, on January 27, 2016 additional applications were filed by 60 utilities and trade associations, docket number 15A776, four coal industry companies and associations, docket number 15A778, 16 business industry trade associations representing electricity, energy, industrial, manufacturing and commercial interests, docket number 15A787, and the State of North Dakota, docket number 15A793.

The DOJ/EPA has been asked to respond to the application by 3 PM EST on Feb. 4, 2016.  Chief Justice Roberts may decide on the application himself, or pursuant to Supreme Court Rules, may refer it to the entire Court.

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