How death of US Supreme Court judge might affect Clean Power Plan

The outlook for President Obama’s Clean Power Plan has plunged and then soared in the space of four eventful days for the US Supreme Court.

The plan is the centrepiece of theUS pledgeto theParis climate deal. It has always faced significantlegal uncertainty, yet last week’s developments took everyone by surprise.

First, a Supreme Court “stay”suspended这个计划,等待法庭裁决的合法性,thereby clouding its long-term prospects. Days later, the death of conservative justiceAntonin Scaliathrew everything back up into the air.

Carbon Brief wraps up analysis of recent events and the implications for US efforts to address climate change.

Surprise stay

Last Tuesday, the Supreme Court issued a short, two-paragraphdecisionfreezing the Clean Power Plan. The Environmental Protection Agency (EPA) will have to suspend implementation and states will be able to skip a September deadline for submitting compliance plans or asking for an extension.

The decision was “unprecedented”, said theNew York Times, as the Supreme Court had never before granted a stay in similar circumstances. As theBBC noted, a DC Circuit Court had refused to issue a stay in January.

The battle over the Clean Power Plan now moves back to that DC Circuit Court, whichagreedto consider the legal challenges at the same time as refusing to issue a stay, reportedVox. The lower court will hear oral arguments on 2 June and could make a decision by the autumn.

The surprise stay erodes a key strength of the plan, which was supposed to generate its own momentum even as the legal back-and-forth continued.

In a Supreme Court decision last year, the EPA lost a case over its mercury regulations, yet the ruling, ultimately, had little impact because power companies had already largely implemented its requirements, asVoxexplained.

Janet McCabe, the senior EPA official with responsibility for the Clean Power Plan’s implementation, told亚慱官网in December that utilities saw the plan “as an opportunity”. She said almost all states were drawing up compliance plans, even if they were opposed to the rules.

As a result of the stay, some states say they will now suspend action, reportedClimateWire, though others will continue to plan for it eventually becoming law. Legal issues may slow, but not stop state carbon-cutting efforts, itreported.

For many electric utilities, the decision “doesn’t really change anything”,EnergyWiresaid. In a similar vein, theWashington Postargued the move to clean power is “proceeding, regardless” of the legal wrangles. Asecond articlesaid the courts “can’t stop clean energy”.

Obama told supporters not to “despair”, reported theHill. White House officials dismissed the “procedural” decision as a “bump in the road”, reported theFinancial Timesand theGuardian.

International reaction to the news was mostly tentative, despite aWiredheadline claiming that the decision “may have nuked the Paris climate deal”. Politicians, businesses and campaigners from other countries “rallied to support” Obama, reported theGuardian.

If the Clean Power Plan is ultimately ruled illegal, however, the chance of nurturing trust between countries would all but vanish, one Indian analyst told theNew York Times.

Sudden death

A more gloomy analysis of the Supreme Court ruling was that it augured badly for the Clean Power Plan’s ultimate fate. The decision had split the nine justices 5-4 along partisan lines, saidReuters, with all five conservatives voting to stay the plan and the four liberals dissenting.

With the split likely to be repeated in later rulings on the plan, the decision was an early hint that it would face a tough ride from the justices further down the road, said theNew York Times.

That calculus was thrown into uncertainty on Friday after the sudden death of 79-year-old justice Antonin Scalia. TheNational Law Journalsays he was “leader of the court’s conservative wing”.

Scalia’s death will “likely spur a tectonic shift in environmental law”, saysGreenwire. Scalia did not believe carbon was an “environmental pollutant”, notes Andy Revkin’sDot Earth blog. Instead, Scalia said carbon was an atmospheric pollutant, arguing the EPA had no authority to regulate the atmosphere. That’s why he dissented in 2007, when the Supreme Courtruledthat the EPA had authority to regulate CO2.

Scalia had also authored the 5-4 majority finding against the EPA in last year’s mercury ruling. In criticising the EPA’s approach, Scalia had signalled a转变awayfrom a doctrine that courts should defer to any reasonable interpretation of the law made by federal agencies.

With Scalia’s passing, the Supreme Court is left with eight justices split evenly between conservatives and liberals. We’ll look at what this split means in a moment.

In terms of filling that ninth seat, President Obama is constitutionally obliged to propose a replacement. His nominee must be approved by the Republican-controlled Senate, however.

Republican presidential hopefuls have been quick to argue the next president should choose Scalia’s replacement, reportsGreenwire. For instance, Donald Trump called for “delay, delay, delay”, says theNew York Times Magazine, foretelling the “next frontier in political hardball”.

The Senate has refused to act on a Supreme Court nomination in a presidential election year at least once before, notes theWashington Post. It recounts how it has become increasingly difficult to confirm any judicial nominees during an election year.

尽管如此,米ost presidential nominees are, ultimately, accepted by the Senate, reportsGreenwire, noting that a delay would be unusual. It says the average gap between nomination and a Senate vote is 67 days, with 341 days of Obama’s presidency remaining.

Political nominee

The politics of the nomination are complex,SCOTUS Blogexplains. Obama could choose a moderate candidate, hoping to secure the Republican votes he needs, saysReuters. Alternatively, a strong liberal choice might reap political capital from the Senate’s likely refusal.

Hillary Clinton says Republican opposition to any Obama nominee is “outrageous”, reports theNew York Times. Either way, the Supreme Court is quickly becoming a campaign issue.

The search for likely nominees is already underway.Politicohas a shortlist, as does theNational Law Journal. DC Circuit Court judge Sri Srinivasan — described as a “nominee in waiting” by a 2013New Yorkerarticle — tops several of the lists.SCOTUS blogargues a female nominee, such as attorney general Loretta Lynch, is more likely.

Srinivasan’s court is due to hear the Clean Power Plan case and he might have to recuse himself if nominated, potentially complicating the outcome,Greenwiresays. Apart from this small wrinkle, however, the DC Circuit Court is expected to uphold the Clean Power Plan, reportsVox.

If that happens, the Supreme Court would have to decide whether to make its own ruling on the Clean Power Plan. If Scalia’s replacement is delayed and the Supreme Court splits 4-4, then the ruling of the lower DC court isautomatically affirmed.

This means Scalia’s death has significantly boosted the chances of the Clean Power Plan coming into force, reportsBustle, with several other outlets carrying similar arguments.

Election year

The change in Supreme Court make-up will, of course, have far-reaching impacts in other areas of US law, from race and immigration through to gun control and abortion, report theNew York Timesand theGuardian.

While much remains to be decided, last week’s events for the Supreme Court highlight how pivotal the presidential election will be for US climate efforts and beyond: at least three other justices are likely to be appointed over the next two presidencies, says theElection Law Blog.

If a Democrat enters the White House in 2017, a liberal Supreme Court majority and continued climate action is all but assured. If it’s a Republican, the opposite applies in spades.

Main image: Supreme Court Justices Stephen Breyer and Anthony Scalia at a hearing at the US Senate Judiciary Committee, 05 Oct 2011, Washington, DC, USA.