The senior-most U.S. Supreme Court Justice, Antonin Scalia, passed away on February 13, 2016 just days after the Supreme Court, by a slim 5 to 4 majority, stayed the EPA’s enforcement of the Clean Power Plan. Among other things, such as the looming battle over whom President Obama will nominate to the Supreme Court and whether the Republican-led Senate will confirm the president’s nominee, Justice Scalia’s death brings into focus what would have happened if the issue of the Clean Power Plan came up before an eight-member Court.

On February 9, 2016, only weeks after the U.S. Court of Appeals for the District of Columbia Circuit denied a multistate plea to stop the plan’s implementation, the Supreme Court issued an unusual judicial stay. The consequence is that, short of the Supreme Court lifting its stay, the EPA will be barred from implementing the Clean Power Plan until: (1) the D.C. Circuit Court takes up the matter in June, and (2) all appeals to the Supreme Court have been exhausted. This decision broke along expected lines, with the majority of five consisting of Chief Justice Roberts and Justices Scalia, Kennedy, Thomas and Alito; the minority was composed of Justices Ginsburg, Breyer, Sotomayor and Kagan.

If the Supreme Court had issued its decision only a week later than it did, then the decision presumably would have been a 4 to 4 split, and the Supreme Court could have either upheld the court of appeals’ decision or held over the matter for future action. In either event, the court of appeals' denial of the stay would have sustained, at least for the time being, the EPA’s ability to implement the Clean Power Plan.

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