ANALYSIS: A Supreme Court death could mean Obama’s Clean Power Plan Survives

Supreme Court Justice Antonin Scalia, who died on Februray 13, 2016. (Photo: Wikipedia)
Supreme Court Justice Antonin Scalia, who died on Februray 13, 2016. (Photo: Wikipedia)

Publish date: February 17, 2016

President Barack Obama’s Clean Power Plan – a lynchpin in the Paris agreement reached at the city’s UN Climate Summit in December – faced conservative political blowback in the US before the negotiations even concluded.

President Barack Obama’s Clean Power Plan – a lynchpin in the Paris agreement reached at the city’s UN Climate Summit in December – faced conservative political blowback in the US before the negotiations even concluded.

But no one could have predicted that the plan’s implementation or failure could hang on the sudden death of ultra-conservative Justice Antonin Scalia on Saturday, and who his replacement might be.

The sudden vacancy has caused confusion, but observers say it might not be a bad thing for Obama’s climate goals.

From an environmental view, the stakes are clear: Like no time in US history could the selection of a nominee to the high court have more influence on international climate change imperatives. Whoever ends up donning the black robe could sink or save US climate efforts and the Paris Agreement in one stroke.

COP21 The Eiffel Tower lighted during the Paris climate summit. (Photo:

The Clean Power Plan is the new set of Environmental Protection Agency regulations that’s the centerpiece of the Obama administration’s climate change policy.

It aims to guide state-level utilities away from coal-fired power generation, and toward renewable energy and natural gas, something the administration says will choke off carbon dioxide emissions from power plants by 32 percent below 2005 levels by 2030

It’s also a key to further US-based carbon capture and storage (CCS) development, noted Sirin Engen, a CCS adviser with Bellona.

“The Clean Power Plan is the main reason why the US is in the forefront of developing CCS, a technology the world desperately needs to have any hope of achieving the global agreement on climate change mitigation,” reached in Paris, she said by email.

A good idea put on hold

On February 9, four days before his death, Scalia was one of the 5 votes against 4 that ruled the Clean Power Plan should neither be implemented nor enforced until the high court itself heard out the Plan’s opponents.

Those opponents’ application for a stay was filed by 29 Republican-led states and coal industry business.

The Court’s stay was broad: It said the Clean Power Plan could only be enforced if the Supreme Court itself ruled it could; or if the DC Circuit Court of Appeals, which is fast tracking the case for review in June, made its own ruling on it and the Supreme Court decided to turn away the inevitable appeal of lower court’s verdict.

Smoke stack Smoke stacks belching CO2 into the atmosphere. (Photo: Wikipedia) Credit: click, MorgueFile

Meanwhile, pushing through a Supreme Court nominee during this particular election year is creating a perfect storm with wildly divided Republican and Democratic points of view on the Clean Power Plan and climate change in general.

In other words, it’s one of those freak political weather events that have become more common with the march of global warming.

Talk about rising temperatures.

Reasons for optimism

But after a few days of digesting the 24-hour din of media speculation over who could fill Scalia’s shoes and to what end, many environmentalists and lawyers are saying the Clean Power Plan has new wind in its sail thanks to the vacancy left by the 79-year-old Justice and his historical antipathy for EPA pollution regulation.

“After last week’s stay decision, I would have given the rule a less than 10 percent chance of surviving legal review unscathed,” Brian Potts, an environmental lawyer with Foley & Lardner LLP, told Bloomberg. “Now I put those odds at better than 75 percent.”

He’s not the only one that sees choppy waters calming.

“It’s pretty remarkable how the fate of the Clean Power Plan has been so topsy turvy over the past two weeks,” UCLA law professor James Salzman said, according to Bloomberg. Within a week after a Supreme Court majority indicated the challengers’ arguments had merit, “now all of the sudden there’s life.”

The fight over whether Obama can appoint a nominee to the Court in an election year also seems to have damped (he can – and it’s been done by 14 previous presidents).

The Senate Judiciary Committee, likewise, can’t just blow off reviewing an Obama nominee, as they promised on Sunday to do. But they can shoot down anyone Obama sends them, forcing the decision on a new nominee on his successor and leaving the seat empty likely for more than a year.

Senate Judiciary_Hearings Hearings of the Senate Judiciary Committee to confirm Chief Justice John Roberts. (Photo: Wikipedia)

That’s a big gamble for the anti-EPA Republicans to take, though: Hillary Clinton and Bernie Sanders, the contenders for the Democratic presidential nomination, both support the Clean Power Plan, and would appoint a justice with an eye to seeing it enforced.

So what happens now? The general agreement so far is that three possible scenarios could prevail.

The first is that Obama can’t get a nominee past the Senate Judicary committee in the next 338 or so days of his office. That seems unlikely: The longest confirmation process on record was Justice Louis Brandeis at 125 days in 1916.

With a ruling on the Clean Power Plan from the DC Circuit Court of Appeals not due until June, any appeals on the verdict wouldn’t be heard by the Supreme Court until February or March 2017 at the earliest, or even October at the latest. That’s plenty of time to fill the vacant seat.

Next, even if appointing a new justice is left to the next president – Democrat or Republican – it’s worth noting that that the stay on the Clean Power Plan’s implementation wasn’t a ruling on its merits.

If the Supreme Court ends up hearing oral arguments on appeal, things could still go favorably for the EPA even with 5 conservative Justices – if EPA pitches the case well enough that one of them breaks ranks.

Finally, Scalia’s seat could remain vacant. In that case, pointed out Jack Lienke, a senior attorney at the Institute for Policy Integrity writing in Grist, a 4 to 4 split from the Supreme Court would mean the DC Circuit Court of Appeals would be upheld.

That decision is still a mystery but not entirely without clues. It was the Circuit Court that refused the original request to stay the Clean Power Plan’s implementation – which landed it on the Supreme Court’s desk. The Circuit Court is also staffed by three judges, two of who are democratic.

Even the Republican appointee has a history of rulings sympathetic to the EPA, said Ann Carlson, a professor at the University of California, Los Angeles School of Law who heads the Emmett Institute on Climate Change

“There are no guarantees about the future of the key to developing climate technologies and phasing out coal in the US,” said Bellona’s Engen, “But with Judge Scalia’s passing, it seems that the Clean power Plan might stay in the game and, with time, deliver on its promises to significantly cut CO2 emissions.”