Arkansas Among Twenty States Seeking Stay of EPA's Mercury Rule

Arkansas Attorney General Leslie Rutledge joined the Attorneys General of nineteen other states in requesting that the Supreme Court of the United States stay imposition of the United States Environmental Protection Agency's (EPA) Mercury and Air Toxics Rule.  This request echoes many of the same arguments that Rutledge and twenty-nine other Attorneys General made in a similar petition to the Supreme Court two weeks ago to stay the EPA's Clean Power Plan.  The Court narrowly granted that request.  Unlike the Clean Power Plan, which the United States Court of Appeals for the District of Columbia Circuit will hear arguments on later this summer, the Supreme Court has already ruled on the constitutional implications of the Mercury Rule in Michigan v. EPA, 135 S. Ct. 2699 (2015), where it found that the EPA had inappropriately failed to consider the costs associated with imposing the Mercury Rule on power plants and remanded for further proceedings to the D.C. Circuit.

The Court's decision to stay the Clean Power Plan is no guarantee that it will likewise stay the Mercury Rule.  Justice Antonin Scalia, who recently passed away, authored the majority opinion in Michigan v. EPA and was one of the majority that granted the Clean Power Plan stay.  While Chief Justice Roberts could unilaterally grant the stay for a short time, his decision is subject to the final review of the full Court and the request would fail without a minimum of five justices agreeing to the stay.