Does Scalia’s Death Help the EPA Clean Power Plan?

The final official act of Senior Associate Supreme Court Justice Antonin Scalia, before his untimely death over the weekend, was —last week — joining the 5-4 majority that stayed the Environmental Protection Agency’s Clean Power Plan while challenges to the new regulations on power plants are heard in a lower court.

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The Atlantic writes that while it’s unlikely that the SCOTUS will revisit its stay — which keeps the new regulations from being enforced until the SCOTUS, itself, or the D.C. Circuit Appellate Court rules — it does draw into question if the High Court, itself, will rule the same way if it takes the case on appeal, essentially because Scalia’s death turns that 5-4 majority into a 4-4 tie. The legality of the Obama administration’s plan is being challenged by 29 states and several power and energy industry groups.

In the language of the Court, taking up a case is “granting a writ of certiorari,” often shortened to “granting cert.” Unlike in a decision on a case, in which five justices determine how the court rules, only four justices need to vote to grant cert in a case. Most experts thought it was likely that the Court—whatever its makeup—would eventually hear the case before Scalia’s death.

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The path to nominating and confirming a justice to replace Scalia on the court has already become a political battle with both parties taking up sides.

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