Just last week – in a stunning display of raw judicial power – the U.S. Supreme Court issued a stay on executive regulations without a lower court first handing down a ruling.
Five Supreme Court justices – including Justice Antonin Scalia – ruled that President Barack Obama and the U.S. Environmental Protection Agency’s controversial Clean Power Plan cannot go forward while the rule is being is considered by the D.C. Circuit Court, which will begin hearing oral arguments on the case in June.
The unusual stay signaled that the high court has serious reservations about the legality of the Clean Power Plan, one that the president said is “the single most important step America has ever taken in the fight against global climate change.”
The Clean Power Plan would require states to reduce greenhouse gas emissions by a third by 2030. The regulations would be especially difficult on the nation’s 1,000 coal-fired plants because they require states to substitute natural gas for coal or develop other energy options that lesson coal’s greenhouse footprint.
Justice Scalia, nominated by Ronald Reagan, had been one of the most outspoken critics of the EPA.
The 5-4 high court decision to issue a stay suggested that the EPA regulations likely would not survive judicial review.
But Scalia’s death on Feb. 13 from what is being called natural causes makes it increasingly likely that the Clean Power Plan will be upheld. In turn, the historic Paris accord signed in December that sets a worldwide cap of increasing temperatures by no more than 3.6 degrees Fahrenheit by the end of the century is also likely to keep moving forward.
The Paris accord is largely based on trust and transparency, requiring governments to voluntarily work together to lower greenhouse gasses. The 5-4 Supreme Court stay sent ripples throughout the globe and potentially put the Paris accord in doubt.
Navroz Dubas, a senior fellow at New Delhi’s Center for Policy Research, voiced what certainly many nations had to be thinking.
“If the U.S. Supreme Court actually declares the coal power plant rules stillborn, the chances of nurturing trust between countries would all but vanish,” Dubas said in a Feb. 20 New York Times report. “This could be the proverbial string which causes Paris to unravel.”
The Supreme Court is now down to eight justices. If it were to rule today on the legality of the Clean Power Plan, the outcome would likely be a 4-4 tie, which would uphold whatever ruling is issued from the federal appeals court. Court watchers believe it’s likely the D.C. court will rule in favor of the EPA rules.
It’s certainly unlikely President Obama would nominate someone who would oppose the Clean Power Plan. The same is likely true if either Hillary Clinton or Bernie Sanders wins the presidency and has the chance to nominate Justice Scalia’s replacement.
So, unless the nomination process is delayed on the hopes a republican becomes president – something already promised by Senate Judiciary Committee Chair Charles Grassley (R-Iowa) and Senate Majority Leader Mitch McConnell (R-Ken.) – the plan is a lot more secure than it was just a week ago.
About Dave Dickey
Dickey spent nearly 30 years at University of Illinois at Urbana-Champaign’s NPR member station WILL-AM 580 where he won a dozen Associated Press awards for his reporting. For the past 13 years, he directed Illinois Public Media’s agriculture programming. His weekly column for Big Ag Watch covers agriculture and related issues including politics, government, environment and labor. Email him at firstname.lastname@example.org.
This column reflects the writer’s own opinions and not those of Big Ag Watch.