The Impact of Justice Scalia’s Death on Obama’s Clean Power Plan Georgetown Environmental Law Review

Titlecard FinalThe Impact of Justice Scalia’s Death on Obama’s Clean Power Plan

By Ruby Hong, Staff Contributor

The most shocking news for the last few days has been Justice Scalia’s death. As the leader of the conservative justices on the Supreme Court, Justice Scalia’s death will have profound effects on the court’s future decisions. One of those decisions will be on Obama’s Clean Power Plan for Existing Power Plants[1].

The Clean Power Plan, finalized by the EPA in the summer of 2015, is the cornerstone of the Obama Administration’s pledge to reduce carbon pollution from power plants.[2] This sweeping EPA regulation requires every state to submit a plan for reducing carbon emissions from power plants before 2018, and requires compliance with those plans by 2022.[3] This regulation aims at cutting down power plant emissions by thirty-two percent of the 2005 levels by 2030.[4]

Many states and coal companies did not welcome the Clean Power Plan. Twenty-four states and the coal industry sued, arguing that the EPA violated federal law by issuing rules to regulate carbon emissions, which are outside its authority under the Clean Air Act.[5] In January, after a federal appeals court declined to halt the plan, the plaintiffs took it to the Supreme Court and asked the Court to suspend implementation of the plan until the litigation ends.[6]

The Supreme Court, by a 5-4 majority, granted the states’ request and put the plan on hold while litigation moves forward in the D.C. Circuit.[7] This decision was detrimental to the plan, as the decision effectively blocked the implementation of the plan until the next administration, which may turn over to GOP control.[8]

Based on the previous vote, unless the Supreme Court justices changed their minds, the plan would have likely been struck down.

The 5-4 decision also suggested a high likelihood that the Supreme Court would eventually strike down the plan. The case pending in the D.C. Circuit Court would most likely come out in favor of the EPA, and the states would then appeal the case to the Supreme Court.[9] Based on the previous vote, unless the Supreme Court justices changed their minds, the plan would have likely been struck down.

Many scholars suspected that the Supreme Court decision would leave other countries doubting the U.S.’s long-term commitment to reducing carbon emissions.[10] The Clean Power Plan represents Obama’s pledge under the Paris Agreement negotiated last December, to reduce U.S. carbon emissions. Countries voluntarily negotiated the Paris Agreement as a collaborative effort to cut down carbon emissions by, among other measures, using clean energy sources.[11] Therefore, this agreement largely relies on trust. Failure to implement the policy could be a major setback and “causes Paris to unravel.”[12]

With only eight justices currently sitting on the court, a 4-4 split, the most likely outcome, would simply uphold the D.C. Circuit’s ruling.

But Scalia’s death changes this scenario. Scalia had been a dependable vote against environmental protection policies.[13] In this particular case, Scalia was expected to vote to strike down the Clean Power Plan.[14] With only eight justices currently sitting on the court, a 4-4 split, the most likely outcome, would simply uphold the D.C. Circuit’s ruling.[15]

It is unlikely that a conservative justice, who would vote down this plan, would be nominated and approved by the time this case is heard. Obama would not nominate a conservative justice that would oppose his landmark regulations.[16] Moreover, even if this case were delayed until the next administration, the GOP would have to first take the White House before it could nominate a conservative justice.

Overall, the passing of Justice Scalia gives the plan a much greater chance to survive the states’ challenges on its legality.

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[1] United States Environmental Protection Agency, Clean Power Plan for Existing Power Plants (August 3, 2015), http://www.epa.gov/cleanpowerplan/clean-power-plan-existing-power-plants.

[2] Bobby Magill, Obama Confident in Climate Plan Despite Court Setback (Feb. 10, 2016), http://www.climatecentral.org/news/obama-confident-climate-plan-court-setback-20014.

[3] Id.

[4] Id.

[5] Id.

[6] Id.

[7] Lawrence Hurley, Scalia’s death boosts legal chances for Obama’s climate plan, (Feb. 16, 2016), http://www.reuters.com/article/us-usa-court-carbon-idUSKCN0VP0FH.

[8] Magill, supra note 2.

[9] John Upton, What Scalia’s Death Means for Climate Change (Feb. 14, 2016), http://www.climatecentral.org/news/what-scalias-death-means-for-climate-change-20033.

[10] Magill, supra note 2.

[11] Upton, supra note 9.

[12] Coral Davenport, Supreme Court’s Blow to Emissions Efforts May Imperil Paris Climate Accord (Feb. 10, 2016), http://www.nytimes.com/2016/02/11/us/politics/carbon-emissions-paris-climate-accord.html?_r=0.

[13] See e.g., Brad Plumer, The Supreme Court Just Put a Crucial Part of Obama’s Climate Plan on Hold (Feb. 9, 2016), http://www.vox.com/2016/2/9/10955470/supreme-court-blocks-obama-co2-rules; Jim Newell, How Scalia’s Death Will Change the 2016 Election (Feb. 13, 2016), http://www.slate.com/articles/news_and_politics/politics/2016/02/antonin_scalia_s_death_will_change_the_2016_election.html.

[14] Upton, supra note 9.

[15] Id.

[16] Id.

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