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.
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 

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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.



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