The state attorneys general leading the court fight against President Obama’s landmark climate change rule say they are optimistic that their unusual legal strategy will work.
While admitting that asking the Supreme Court to block the rule before a lower court decision is a gamble, the officials for West Virginia and Texas say their argument is sound.
“We acknowledge that an application for a stay at this stage isn’t typical,” West Virginia Attorney General Patrick Morrisey (R) told reporters Wednesday.
“But what the EPA has done here is literally unprecedented, and they’re acting in a manner that’s clearly in violation of the rule of law, and recent Supreme Court cases,” he said.
Morrisey and Oklahoma Attorney General Scott Pruitt (R), along with representatives of 24 other states, asked the Supreme Court last week to stop the Environmental Protection Agency from enforcing the power plant rule while it is being litigated in federal court.
The states took the unusual step after the Court of Appeals for the District of Columbia Circuit, which is considering the merits of their lawsuit, declined earlier in January to issue a judicial stay.
The attorneys general argue that their states will experience irreparable harm during the litigation and that only a stay would prevent that.
Morrisey cited last year’s Supreme Court ruling in against the EPA’s mercury rule for power plants as an example of when a ruling comes too late, since most power plants had already complied with the standard.
“The court may feel the need to come in and look at these cases closely and give these states the opportunity to have a hearing and a decision on the merits before these harms continue,” he said.
Pruitt said the EPA is betting on a long litigation process so that states and power plants comply with the climate rule before the Supreme Court decides its fate.
“You have the EPA and this administration taking steps to basically engage in unlawful action, and they’re trying to accelerate it so that the states are forced to comply before there’s ever a ruling on the merits, with respect to the unlawfulness of the rule,” Pruitt said.
“There’s really been almost an intimidation to act before this president leaves office to put into motion compliance with what we believe to be an unlawful rule,” he continued.
Supreme Court Chief Justice John Roberts has asked the Obama administration to respond to the stay request by Thursday.
He will then either decide on the request himself or allow the full court of nine justices to decide.
Usually, the states would have to wait for the lower court to rule on the case and appeal it to the higher court for the justices to weigh in on it.