Will Justice Scalia’s Death Impact Global Climate Change?

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Heads of delegations at the 2015 United Nations Climate Change Conference (COP21), which led to the signing of the Paris Agreement.

Heads of delegations at the 2015 United Nations Climate Change Conference (COP21), which led to the signing of the Paris Agreement.

On February 9th, 2016, just months after a historic climate deal in Paris, the Supreme Court temporarily blocked the Obama administration’s Clean Power Plan, pending judicial review. The court ordered a stay, in a 5-4 ruling, on the Environmental Policy Act regulation while a lower court considers legal challenges from coal-burning utilities, mining companies, and almost thirty states. These states, along with dozens of corporations and industry groups, are suing the Obama administration over regulations geared at curbing carbon emissions in favor of green energy. They argue that the administration exceeded its powers under the Clean Air Act.

What is the Clean Power Plan?

The Clean Power Plan is a regulation advanced by the EPA under the Clean Air Act, and aims to cut carbon dioxide emissions from U.S. power plants 32 percent below their 2005 levels by 2030. The regulation requires states to make their own cuts to carbon dioxide emissions. Under the plan, each state is given various options for hitting their unique emissions reduction goals. Those options are referred to as “building blocks” and can include: increasing efficiency at power plants, switching from coal-fired power plants to natural gas generation, and increasing the percentage of a state’s electricity that comes from renewable sources like solar and wind.

The historic Paris Agreement on Climate Change was agreed on December 12, 2015, by 195 nations. This agreement marked a time when once-feuding nations largely set aside their differences to secure a deal. This landmark agreement was reached to commit nearly every country to combat climate change by lowering greenhouse gas emissions and investing toward a low carbon sustainable future. This agreement puts the world’s nations on a course that could fundamentally change the way energy is produced and consumed by relying on cleaner forms of energy.

However, since the Supreme Court’s decision was not based on the merits of the regulation, supporters of the Clean Power Plan firmly believe that it will be upheld when the merits are considered. Advocates argue that the regulation rests on strong scientific and legal foundations. The case will likely head back to the Supreme Court for an eventual decision on the merits, but the earliest that could happen would be 2017. Depending on how the case unfolds, it is likely the Supreme Court will not issue a final ruling on the regulations until after Obama has left office. The recent death of Justice Scalia, one of the conservative justices who supported this injunction, raises several interesting questions regarding the future of this regulation. Whether President Obama will be able to successfully appoint a Supreme Court nominee will likely play a significant role in this regard. Essentially, Justice Scalia’s death could make it substantially more likely that the Clean Power Plan will ultimately survive the court.

Nevertheless, the stay represents a major setback for President Obama’s climate change agenda, which could potentially undermine U.S. leadership on climate change in the international arena. The Supreme Court’s extraordinary decision has had a significant impact both domestically and internationally, prompting several states to halt their carbon-cutting efforts. Moreover, it has raised questions from other countries about the U.S.’s ability to deliver on the Administration’s pledge in Paris and the depth of the U.S.’s commitment to deal with this problem in a meaningful way. The EPA ensures that it will continue providing tools, support, and guidance for those states that maintain their efforts to cut carbon pollution from power plants. Proponents of the plan hope the ruling won’t interfere with the Paris deal, if the U.S. can meet its short-term commitments.

Why SCOTUS’s Stay is Extraordinary

Supporters and opponents alike thought there was no possibility that the Supreme Court would grant a stay. This is precisely because a Supreme Court stay of a rule pending judicial review is such an extraordinary form of relief that it implies a majority of the justices have decided that the Clean Power Plan must go. This appears to be more than just a simple preliminary injunction for four main reasons. For starters, it is unprecedented for the Supreme Court to stay a rule pending judicial review. Second, a stay in this case will only issue if the Supreme Court is sufficiently convinced on the merits. Third, the D.C. Circuit Court of Appeals had already fast-tracked the case, scheduling expedited briefing and preparing to hear oral arguments on the full case in June. This highlights the fact that the challengers could have asked the Supreme Court for an injunction if the appeals court ruled against them then. Lastly, the Court implied (in the stay) that it does not necessarily trust the Court of Appeals, because the stay will remain in force even if the D.C. Circuit affirms the rule. The stay will only terminate if: (1) the Court of Appeals upholds the Clean Power Plan and the Supreme Court denies certiorari; or (2) the order is upheld and the Supreme Court also upholds it.

Consequences of the Stay

The current status of the Clean Power Plan is surprising not only because the Supreme Court has rebuked a major priority of the Obama Administration by granting a stay, but also because the Supreme Court very rarely grants stays at this stage in litigation. Effectively, this course of action is at odds with the Court’s usual practice in choosing when to stop a major regulation from moving forward. Despite the fact that all four liberal justices (Ginsburg, Breyer, Sotomayor, and Kagan) expressed their disagreement with the injunction, what makes the Supreme Court’s move most notable, is the fact that it suggests five justices think the Obama plan will ultimately be declared unconstitutional. Scalia’s passing changes this and raises new questions such as: what will happen when the DC Circuit issues a decision on the Clean Power Plan this fall, putting the rule in front of the Supreme Court in spring 2017? Will the Supreme Court still have a vacant ninth seat? Will that seat be filled, and if so, by whom? Ultimately, the EPA faces considerably better odds now than it did with Scalia on the bench.

The eagerness of the conservatives on the Court to intervene in the implementation of the Clean Power Plan suggests their disdain with Obama’s use of his executive power. The stage is set for the court to engage with the question of whether Obama’s use of his executive power violates the Constitution. More generally, conservative Supreme Court justices will likely place a significant emphasis on the use and/or abuse of executive powers as this case moves forward. The consequences of this case will materially affect the U.S.’s ability to enter into and enforce similar international environmental and climate change related agreements. The impact of Justice Scalia’s death will reverberate across the legal landscape, and we cannot yet grasp its full consequences. However, it is already clear that the most important environmental initiative of the Obama presidency is now much more likely to succeed.

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