What Does Scalia’s Passing Mean for the ‘Paused’ Clean Power Plan?

Guest Blog | February 23, 2016 | Climate Change, Coal, Energy Policy

Kailie Melchior, SACE’s Communications Research Intern, co-wrote this blog.

America’s first regulation aimed at reigning in carbon pollution from our nation’s power sector may avoid some of the increasing politicization of our legal system in part due to the sudden and unexpected death of Supreme Court Justice Antonin Scalia. A staunch conservative who sided more often with industry plaintiffs than with environmental advocates, Justice Scalia left a lasting legacy in environmental cases by offering strict interpretations for what constitutes “legal standing” and “harm.”

With Justice Scalia’s seat currently vacant, the Clean Power Plan may stand a better chance when it inevitably finds itself in front of the Supreme Court within a year. Other than his decision in Whitman v. American Trucking Association, where he took a pro-environment stance in the name of human health, and his rejection of the industry claim that coal ash is not a hazardous waste, Justice Scalia was most often found on the anti-environment side of the court – favoring property rights over the rights of endangered species, and was a dissenting vote in the landmark Massachusetts v. EPA decision that upheld the Environmental Protection Agency’s authority to regulate carbon pollution under the Clean Air Act.

Just prior to Scalia’s passing, the Supreme Court surprised many with an unprecedented move to stay the case before a lower court (in this case the D.C. Circuit Court) had even heard the case, much less issued a decision. This preliminary 5-4 Supreme Court decision gave some the impression that the Clean Power Plan may ultimately be struck down by the Supreme Court on political merits, since a majority of the Justices voted to stay the Clean Power Plan before even being presented with the findings of the lower court or any merits of the legal case.

Now, it’s anyone’s guess as to what may happen when the Clean Power Plan eventually makes it to our nation’s highest court. If, however unlikely, there are still only eight Supreme Court Justices when the case is heard, then a 4-4 split would mean that the lower court’s ruling is upheld and no new legal precedent is set. This possibility has led many to focus more heavily on the current legal battle in the U.S. Court of Appeals for the D.C. Circuit, which is set to begin on June 2nd.

There is also a chance that the makeup of the D.C. Circuit court will be affected by the untimely passing of Justice Scalia – and this is where things get tricky. One of the D.C. Circuit judges set to hear this case is Sri Srinivasan, who was called “The Supreme Court Nominee-in-Waiting” by New Yorker writer Jeffrey Toobin back in 2013. If Srinivasan were nominated by President Obama this spring, he may decide to recuse himself from hearing the lower court case, providing one of several variables in whether or not the Clean Power Plan is upheld by that court. On the other hand, if Srinivasan hears and rules on the case in the lower court and then gets nominated for the Supreme Court later this year, he may recuse himself from hearing and weighing in once it is argued before the Supreme Court due to prior involvement. In that instance, assuming the D.C. Circuit (with Srinivasan ruling) upheld the Clean Power Plan, the Supreme Court could again be split 4-4 and so the lower court’s ruling would stand and the rule would be validated. All of these moving parts illustrate how many factors may affect the ultimate fate of our nation’s first public-health regulations aimed at addressing dangerous climate pollution.

Speaking of the possible nominees to fill the high court’s vacant seat, Srinivasan’s legal record on environmental issues is worth a closer look. Before becoming a judge, he was associated with a since-dismissed dispute over human rights violations in Papua New Guinea from when he used to work for Exxon and Rio Tinto. Since his elevation to the court, however, he ruled that environmentalists had standing to sue to seek historical protections that would block mining on a West Virginia mountain, which may dispose him to rule favorably on the Clean Power Plan.

On a larger scale, the ultimate fate of the Clean Power Plan will affect more than just the United States. In December, landmark meetings in Paris resulted in 196 different nations agreeing to take collective action to slow the impacts of climate change. These Paris negotiations produced Intended Nationally Determined Contributions – or INDCs. This means that each country is in charge of developing its own emission reduction goals and methods to achieve those goals. In essence, the Clean Power Plan is a major part of our country’s INDC and is part of a broader, voluntary agreement to reduce carbon pollution in order to limit global warming to 1.5 degrees while obtaining a commitment to transparency.  It is important to understand that the Paris agreement is not legally binding, so its success depends on many factors, one being that the more powerful nations stick by the promises they made; the U.S. is one of these nations.

The Supreme Court has played and will continue to play an incredibly important role in America’s efforts to curb climate pollution. Although we are unsure how climate issues will fare in this new court as a result of Justice Scalia’s death, it is apparent that any successor will have the opportunity to have a significant impact on environmental law and policy for decades to come. SACE will be tracking this closely, as we are committed to pushing the Southeast forward on energy policy. Not backwards – or standing still.

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