17 Feb 2016: Opinion

With Court Action, Obama’s
Climate Policies in Jeopardy

The U.S. Supreme Court order blocking President Obama’s plan to cut emissions from coal-burning power plants is an unprecedented step and one of the most environmentally harmful decisions ever made by the nation’s highest court.

by michael b. gerrard

Two unexpected and shocking events last week have left heads swimming about the fate of President Obama’s signature initiative on climate change, the Clean Power Plan, which aims to replace many coal-fired power plants — the largest source of greenhouse gas emissions in the United States — with cleaner sources of energy.

Last Tuesday, the U.S. Supreme Court issued a stay on the Clean Power Plan until the litigation against it is finally resolved, suspending implementation of the plan for the foreseeable future. The vote was 5-4, along the customary ideological lines, and it led to great concern, bordering on quiet despair, among proponents of the plan. who now believed that the Supreme Court would ultimately strike it down. Opponents of the plan, including the coal industry, rejoiced.

Supreme Court Action:
An Opportunity on Climate?

U.S. and Global Climate Policies
Will Survive the Court’s Ruling
The court’s order blocking Obama’s Clean Power Plan provides an opportunity for the U.S. to show other nations it has a flexible approach to cutting emissions, David Victor writes.
READ MORE
Then last Saturday came news of the sudden passing of Justice Antonin Scalia, who in his 30 years on the Supreme Court had been its most forceful critic of the U.S. Environmental Protection Agency (EPA). Had his death occurred a few days days earlier, the court would have been tied on the question of the Clean Power Act, and no stay would have been issued. Recent history suggests that if a Democratic president ends up appointing Justice Scalia’s successor, he or she will vote to uphold the Clean Power Plan and it will survive. If a Republican is elected later this year, the legal wrangling over the plan will become a moot point because all the Republican candidates have vowed to halt the Clean Power Plan anyway.

The Supreme Court’s stay of the Clean Power Act — one of the most environmentally destructive actions the court has ever taken — has roots going back nearly a decade. In a 2007 ruling in Massachusetts v. EPA, the court declared that the Clean Air Act authorizes the EPA to regulate emissions of carbon dioxide and other planet-warming gases. Justice Scalia dissented. Virtually everyone on both sides of this issue agrees that the 1970 Clean Air Act is not the best way to tackle climate change, and President Obama pushed for an economy-wide cap-and-trade law. The House narrowly passed the Waxman-Markey bill in 2009, but it died in the Senate. Thus the EPA was relegated to using the Clean Air Act. In 2014, the Supreme Court upheld most of the EPA’s initial actions in this direction, including greenhouse gas controls on motor vehicles and on some new stationary sources that already were required to have air pollution permits, such as power plants and oil refineries.

However, the part of the Clean Air statute dealing with old stationary sources, such as coal-fired power plants, is much more cumbersome. Using
Most Republican governors opposed the plan, and 27 states signed on to litigation challenging it.
that law, the EPA gave each state a greenhouse gas reduction target for its power plants and told it to devise a plan to meet that target. The states would likely meet these targets through a combination of improving the efficiency of the plants; using more natural gas and less coal; building new renewable energy sources, such as wind and solar; and reducing electricity demand by improving energy efficiency.

This plan was ferociously opposed by the coal industry, which was already gasping as a result of low-cost natural gas, plummeting costs of new renewables, and other environmental regulations. Almost every Republican member of Congress publicly opposes climate regulation (and many reject the underlying science), and the leadership in both the House and the Senate vowed to halt the plan; only President Obama’s veto pen has prevented that. Most Republican governors joined the opposition to the plan, and 27 states signed on to the litigation challenging it. (Eighteen states, most with Democratic governors, filed in support of the EPA.)

These cases were all filed in the U.S. Court of Appeals for the District of Columbia. Last month, the court rejected motions for a stay and set an expedited briefing schedule with oral arguments starting on June 2, 2016. This was good news for the EPA, as it meant the states would proceed with the preparation of their plans, at least until the court ruled, most likely this fall.

The challengers, led by West Virginia, filed an emergency motion with Chief Justice John Roberts for a stay. This was generally regarded as a Hail Mary pass; not once had the Supreme Court ever stayed a regulation that was still being reviewed by the Court of Appeals. But last Tuesday, the first thunderbolt struck. The Supreme Court broke all precedent, granted the stay, and took the equally extraordinary action of declaring that the stay would remain in effect not only until the Court of Appeals ruled, but until the Supreme Court was done with the case. That could easily be two years from now.

By acting as it did, the Supreme Court shut down the most important actions being taken by the United States to address the greatest environmental challenge ever faced. Though there are legitimate legal
The Supreme Court shut down the most important actions being taken by the United States to address global warming.
questions about the Clean Power Plan, almost no one expected the Supreme Court to halt the preliminary planning work; after all, the first compliance period does not begin until 2022. The Clean Power Plan was the centerpiece of the U.S. pledges at the Paris climate conference last December, and there was immediate fear that the stay would give other countries an excuse to back off on fulfilling their own pledges.

The second thunderbolt struck three days later with Justice Scalia’s death. All of a sudden the crucial fifth vote — and in many ways the most forceful one — against the Clean Power Plan was gone.

If the Senate Republicans succeed in blocking any nomination made by President Obama to fill Scalia’s seat, it would fall to the next president to name the next justice. And that makes the stakes in the next presidential election even higher.

If an Obama appointee is confirmed, or if Hillary Clinton or Bernie Sanders is the next president, there is a good chance the next justice would vote to uphold the Clean Power Plan. That of course assumes that nominee is confirmed before the case is decided; this would likely be a massive and protracted confirmation battle, given the importance for so many areas of law. If the Supreme Court rules on the case before it is back at full strength, there could well be a four-four split on the Clean Power Plan. When there is a tie vote, the lower court decision stands; so the Court of Appeals decision would be the last word.

But if no Obama appointee is confirmed and if any of the Republican candidates becomes president, a new, conservative Supreme Court justice could well vote to overturn the Clean Power Plan. At that point, though, the suit would not matter so much, as the new Republican president would be hard at work dismantling the rules and regulations that President Obama put in place to slow the march toward destabilizing planetary warming.

Another Perspective: David Victor writes that after the Supreme Court action on the Clean Power Plan, the U.S. must show other nations it has a flexible, multi-faceted approach to cutting emissions.

POSTED ON 17 Feb 2016 IN Business & Innovation Climate Energy Policy & Politics Policy & Politics Europe North America 

Comments have been closed on this feature.
michael b. gerrardABOUT THE AUTHOR
Michael B. Gerrard, Andrew Sabin Professor of Professional Practice at Columbia Law School, is Director of the Center for Climate Change Law and Associate Chair of the faculty of Columbia University’s Earth Institute. He teaches courses on environmental law, climate change law, and energy law. From 1979 through 2008 he practiced environmental law in New York, most recently as partner in charge of the New York office of Arnold & Porter LLP.

 
 

RELATED ARTICLES


High Stakes on the High Seas:
A Call for International Reserves

Marine protected areas in national waters have proven successful in helping depleted fish stocks to recover. Now, there is growing momentum for the creation of extensive reserves on the high seas as a way of reversing decades of rampant overfishing.
READ MORE

Can We Reduce CO2 Emissions
And Grow the Global Economy?

Surprising new statistics show that the world economy is expanding while global carbon emissions remain at the same level. Is it possible that the elusive “decoupling” of emissions and economic growth could be happening?
READ MORE

Why Supreme Court’s Action
Creates Opportunity on Climate

The U.S. Supreme Court order blocking the Obama administration's Clean Power Plan may have a silver lining: It provides an opportunity for the U.S. to show other nations it has a flexible, multi-faceted approach to cutting emissions.
READ MORE

Beyond the Oregon Protests:
The Search for Common Ground

Thrust into the spotlight by a group of anti-government militants as a place of confrontation, the Malheur wildlife refuge is actually a highly successful example of a new collaboration in the West between local residents and the federal government.
READ MORE

In Search of a New Politics
For a New Environmental Era

Author Jedediah Purdy looks at a world irrevocably changed by humans and finds that it demands a fundamentally different politics – one that places a moral value on climates and landscapes and takes responsibility for future generations.
READ MORE

 

MORE IN Opinion


Why We Need a Carbon Tax,
And Why It Won’t Be Enough

by bill mckibben
Putting a price on carbon is an idea whose time has come, with even Big Oil signaling it may drop its long-standing opposition to a carbon tax. But the question is, has it come too late?
READ MORE

Floating Solar: A Win-Win for
Drought-Stricken Lakes in U.S.

by philip warburg
Floating solar panel arrays are increasingly being deployed in places as diverse as Brazil and Japan. One prime spot for these “floatovoltaic” projects could be the sunbaked U.S. Southwest, where they could produce clean energy and prevent evaporation in major man-made reservoirs.
READ MORE

Point/Counterpoint: Should
Green Critics Reassess Ethanol?

by timothy e. wirth and c. boyden gray
Former U.S. Senator Timothy Wirth and former White House Counsel C. Boyden Gray argue that environmental criticisms of corn ethanol are unwarranted and that the amount in gasoline should be increased. In rebuttal, economist C. Ford Runge counters that any revisionist view of ethanol ignores its negative impacts on the environment and the food supply.
READ MORE

The Case Against More Ethanol:
It's Simply Bad for Environment

by c. ford runge
The revisionist effort to increase the percentage of ethanol blended with U.S. gasoline continues to ignore the major environmental impacts of growing corn for fuel and how it inevitably leads to higher prices for this staple food crop. It remains a bad idea whose time has passed.
READ MORE

How Satellites and Big Data
Can Help to Save the Oceans

by douglas mccauley
With new marine protected areas and an emerging U.N. treaty, global ocean conservation efforts are on the verge of a major advance. But to enforce these ambitious initiatives, new satellite-based technologies and newly available online data must be harnessed.
READ MORE

Why Supreme Court’s Action
Creates Opportunity on Climate

by david victor
The U.S. Supreme Court order blocking the Obama administration's Clean Power Plan may have a silver lining: It provides an opportunity for the U.S. to show other nations it has a flexible, multi-faceted approach to cutting emissions.
READ MORE

Beyond the Oregon Protests:
The Search for Common Ground

by nancy langston
Thrust into the spotlight by a group of anti-government militants as a place of confrontation, the Malheur wildlife refuge is actually a highly successful example of a new collaboration in the West between local residents and the federal government.
READ MORE

Beyond Keystone: Why Climate
Movement Must Keep Heat On

by bill mckibben
It took a committed coalition and the increasingly harsh reality of climate change to push President Obama to reject the Keystone XL pipeline. But sustained public pressure will now be needed to force politicians to take the next critical actions on climate.
READ MORE

Rachel Carson’s Critics Keep On,
But She Told Truth About DDT

by richard conniff
More than half a century after scientist Rachel Carson warned of the dangers of overusing the pesticide DDT, conservative groups continue to vilify her and blame her for a resurgence of malaria. But DDT is still used in many countries where malaria now rages.
READ MORE

In Clash of Greens, a Case for
Large-Scale U.S. Solar Projects

by philip warburg
Weaning the U.S. economy off fossil fuels will involve the wide deployment of utility-scale solar power. But for that to happen, the environmental community must resolve its conflict between clean energy advocates and those who regard solar farms as blights on the landscape.
READ MORE


e360 digest
Yale
Yale Environment 360 is
a publication of the
Yale School of Forestry
& Environmental Studies
.

SEARCH e360



Donate to Yale Environment 360
Yale Environment 360 Newsletter


CONNECT


ABOUT

About e360
Contact
Submission Guidelines
Reprints

E360 en Español

Universia partnership
Yale Environment 360 articles are now available in Spanish and Portuguese on Universia, the online educational network.
Visit the site.


DEPARTMENTS

Opinion
Reports
Analysis
Interviews
Forums
e360 Digest
Podcasts
Video Reports

TOPICS

Biodiversity
Business & Innovation
Climate
Energy
Forests
Oceans
Policy & Politics
Pollution & Health
Science & Technology
Sustainability
Urbanization
Water

REGIONS

Antarctica and the Arctic
Africa
Asia
Australia
Central & South America
Europe
Middle East
North America

e360 VIDEO

“video
Tribal people and ranchers join together to stop a project that would haul coal across their Montana land.
Watch the video.

e360 MOBILE

Mobile
The latest
from Yale
Environment 360
is now available for mobile devices at e360.yale.edu/mobile.

e360 PHOTO ESSAY

“Alaska
An aerial view of why Europe’s per capita carbon emissions are less than 50 percent of those in the U.S.
View the photos.

e360 VIDEO

“Ugandan
Ugandan scientists monitor the impact of climate change on one of Africa’s most diverse forests and its extraordinary wildlife.
Learn more.

e360 VIDEO

Food waste
An e360 video series looks at the staggering amount of food wasted in the U.S. – a problem with major human and environmental costs.
Watch the video.

e360 VIDEO

Colorado wildfires
An e360 video goes onto the front lines with Colorado firefighters confronting deadly blazes fueled by a hotter, drier climate.
Watch the video.

e360 SPECIAL REPORT

“Tainted
A three-part series Tainted Harvest looks at the soil pollution crisis in China, the threat it poses to the food supply, and the complexity of any cleanup.
Read the series.

OF INTEREST



Yale