Jodi Kantor and Adam Liptak obtained and published the internal memos behind the Supreme Court’s Feb. 9, 2016, order that halted President Barack Obama’s Clean Power Plan. The papers showed, in rare detail, how the justices weighed a request that had never before been made in quite that way: a bid to stop a major executive regulatory action before a federal appeals court had ruled.
The stay came by a 5-4 vote after the Supreme Court moved against the Obama administration’s signature environmental policy. In October 2015, the Environmental Protection Agency finalized the Clean Power Plan, the first federal rule aimed at limiting carbon emissions from existing power plants. It required states to cut power-sector emissions 32% below 2005 levels by 2030, and the Senate had voted twice to kill it. Twenty-seven states and industry groups then challenged the rule in the U.S. Court of Appeals for the D.C. Circuit.
The D.C. Circuit denied a stay on Jan. 21, 2016, but the applicants pressed ahead anyway, asking the Supreme Court to halt the rule while the appeals court was still considering the case. West Virginia’s solicitor general, Elbert Lin, captured the unusualness of the move after the justices acted: “This had never been done.”
The leaked memos gave an unusually clear look at the court’s private deliberations. Justice Elena Kagan wrote that it would have been unprecedented for the court to second-guess the D.C. Circuit’s refusal to stop the rule without the benefit of a prior judicial decision. That is what made the Feb. 9 order stand out even in an emergency docket that had been in place for years: for the first time, the court used it to freeze such a sweeping regulatory action before any appellate court had ruled.
That is the lasting significance of the memos Kantor and Liptak published. They show that the stay was not just a procedural move but a break with practice, one that put the Supreme Court directly into the fight over climate policy before the normal appellate process had run its course.