The 2015 regulation that would have shaped Barack Obama’s climate legacy met its ultimate end at the Supreme Court two years ago. It must feel like déjà vu for President Joe Biden. A similar band of Republican attorneys general and utilities petitioned the court Tuesday to jump into the fray again — this time to shelve Biden’s effort at regulating carbon emissions from the power sector until it runs the maze of judicial review. Obama and Biden were aiming at the same goal of putting teeth behind the transition to cleaner energy, but the two rules are significantly different, Niina H. Farah writes. An immediate stay of the Biden rule under the court’s emergency “shadow docket” isn’t as likely in this case as when justices put the Obama rule on ice and then killed it later. "For the Supreme Court to grant a stay would be shocking, and truly ominous," Michael Gerrard, faculty director of the Sabin Center for Climate Change Law at Columbia University, said of Biden's rule. Under the latest Environmental Protection Agency rule, the nation’s shrinking fleet of coal-burning power generators are required over the next decade to capture their carbon emissions or shut down. The Obama rule sought to shift electricity generation from coal to zero-carbon technology such as wind and solar power. The so-called Clean Power Plan gave states broad parameters for how to meet EPA’s pollution targets. The Biden rule, on the other hand, is modeled more closely on the traditional regulatory approach under the Clean Air Act, which requires power plants to use the best available technology to cut dangerous pollutants. ‘Immediate harm’ From the agency’s vantage point, carbon capture technology has been adequately demonstrated as viable in the real world. But challengers of the Biden rule, including the powerful Edison Electric Institute, say EPA is assuming too much about the technology’s availability. “A Supreme Court stay is necessary to prevent immediate harm to the nation’s electric grid and the American economy,” said Jim Matheson, CEO of the National Rural Electric Cooperative Association. The Supreme Court has become much more willing to intervene in cases using the so-called shadow docket — the emergency docket traditionally reserved for non-divisive procedural matters that need to be settled quickly. Just last month, the justices issued a 5-4 decision to block EPA limits on smog-forming pollution that crosses state lines under its "good neighbor" rule. The case was brought to the justices through the court's shadow docket. Still, legal observers said the Biden rule may not grab the high court's attention in the same way the Clean Power Plan did.
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