Justice Scalia's Death Bodes Well for the Clean Power Plan

The EPA's Clean Power Plan (CPP), the centerpiece of the Obama administration's climate efforts was stayed by the US Supreme Court on February 9, however the death of Conservative justice Antonin Scalia just a few days later breathes new life into the plan.

In total 27 states, the coal industry, and the Republican party want to stop the EPA's efforts to reign in emissions from US power plants. Their efforts to undermine the plan are at odds with American opinions. Polls show that the majority of Americans support the CPP even in states that oppose it.

The unprecedented Supreme Court ruling ignored the merits of the plan which includes health, cost and climate benefits. The implementation of the plan are now on hold until the D.C. Circuit Court reviews the legality of the case. The same court denied a request for a stay of the CPP. For the CPP to be killed by the courts the challengers will have to prove irreparable-harm and such claims are almost impossible to prove.

The EPA and President Obama remains confident that we will see the plan proceed after the hearing scheduled for June. As Obama explained:

"I've heard people say, 'The Supreme Court struck down the clean power plant rule.’ That's not true, so don’t despair people. This is a legal decision that says, 'Hold on until we review the legality.' We are very firm in terms of the legal footing here."

EPA Administrator Gina McCarthy made a statement in which she said that the ruling “is not going to slow us down.”

However, even the most optimistic environmentalists are disappointed by the Supreme Court's actions. At the very least it provides a legal basis for states to refuse to move forward on the implementation of the plan. At its worst it is a major blow to the COP21 climate agreement reached in December of last year in Paris.

As everyone knows global emissions reductions are contingent on US leadership. President Obama was instrumental in getting countries like China, India and Brazil to sign-on to the Paris deal. The failure of the US to substantially reduce its emissions represents a major impediment to global climate action. It significantly increases the likelihood that the world will not ramp up emissions reductions to keep temperatures from rising beyond the 1.5 to 2 degree Celsius upper threshold limit.

The CPP would reduce emissions from US power plants by one third by 2030. If it is not implemented the US will not be able to meet its pledge to cut its carbon emissions 26 to 28 percent below 2005 levels by 2025. The legal case against the CPP is premised on the fifth and tenth amendments to the US Constitution (confiscation of private property and states' rights). The rebuttal to these claims is that coal will continue to be part of the power mix and the US Supreme Court's ruling that the EPA has the right to regulate carbon dioxide emissions. Regulators already have the authority to monitor toxic releases as they cross state boundaries.

Even without the CPP there is still hope for emissions reduction from the US energy sector as renewables and gas are replacing coal for economic reasons. Other sectors are also decreasing emissions. The next president could rewrite the CPP, reform fossil fuel leasing programs, and regulate methane. However the stay on the CPP makes an already difficult battle that much more arduous.

The Supreme Court's stay of the CPP speaks to the power of the ideological conservative judicial activists on the Supreme Court. The 5-4 decision had conservative and moderate justices ruling that a “stay” was appropriate while the more liberal judges dissented from the majority decision.

The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan. Now that Scalia is gone, getting a majority of justices to strike down the CPP is very unlikely. The D.C. Circuit panel composed of a majority of Democratic appointees will almost certainly uphold the regulations in June.

Although Republican legislators can be counted on to continue their politically motivated campaign of obstructionism, even if they refuse to support a replacement to Scalia it is very unlikely the Supreme Court justices who oppose the CPP will get the support they need to kill the plan.

The Conservative majority in the Supreme Court has died along with Justice Scalia. This turn of events is critical because climate change cannot be stayed by the courts. As the EPA explained in a statement: