Without Scalia, Obama's climate plan may have a better chance of survival

The sudden death of Supreme Court Justice Antonin Scalia on Saturday may mean that President Obama's Clean Power Plan to combat manmade global warming is more likely to remain intact. The plan, which consists of EPA limits on greenhouse gas emissions from new and preexisting power plants, forms the centerpiece of Obama's agenda to limit global warming. 

Without the Clean Power Plan, it would be nearly impossible for the U.S. to live up to the emissions reduction pledges it made as part of the Paris Agreement struck in December, in which the U.S. said it would cut emissions by 26 to 28% below 2005 levels by 2025.

It was only about a week ago that the Court, in a 5-to-4 ruling, temporarily halted the implementation of the Clean Power Plan pending the resolution of legal challenges to the constitutionality of the regulations. More than two-dozen states, along with corporations and industry groups, were in favor of such a stay while they work to halt the EPA's regulations entirely. 

This marked the first time in history that the Supreme Court had issued a stay on regulation prior to a federal appeals court review. The court's move was interpreted by many as a shot across the bow of the Obama administration to indicate the conservative majority's willingness to strike down the regulations once they reach the court in 2017 at the earliest. 

Original image has been replaced. Credit: Mashable

Justice Scalia was among the majority of justices that voted to issue that stay. Without him, it would not have halted the ruling.

The court's decision also called into question the ability of the United States to live up to the climate commitments it made in Paris in December as part of a landmark global climate agreement, since without the Clean Power Plan in place, it's unlikely the U.S. could reduce its emissions by up to 28% by 2025. 

Under the Clean Power Plan, the EPA seeks to cut planet-warming carbon pollution from power plants by 32% below 2005 levels by 2030, through a system of flexible state plans to regulate pollution from power plants and other facilities.

The ruling caught environmentalists and foes of the plan by surprise. 

"Today's Supreme Court order to halt those regulations -- regulations that attack the middle class and won't even have a meaningful impact on global carbon emissions -- is just the latest sign they may not be [legal]," Senate Majority Leader Mitch McConnell said, praising the Supreme Court's move.

"It was totally unexpected and unprecedented, and I think both sides of the case were surprised, us shocked to lose, the other side probably shocked to win on this step, but it is only a temporary halt," David Doniger, director of the Natural Resources Defense Council's (NRDC) clean air and climate program, told E&E TV. The NRDC was closely involved with the formulation of the Clean Power Plan.

"We have a strong position and we think the D.C. Circuit will uphold the rule," Doniger said. "Then the Supreme Court will have its look on the merits."

Scalia's climate history

The Clean Air Plan was developed after the administration tried and failed to get legislation through congress that would have addressed greenhouse gas emissions. Instead, the Obama White House turned to its regulatory authorities by relying on the EPA's ability to regulate greenhouse gas emissions as a "pollutant" under the Clean Air Act.

That authority dates back to the 2007 Supreme Court case Massachusetts v. EPA.

Original image has been replaced. Credit: Mashable

Justice Scalia wrote a dissenting opinion in that case, and during oral arguments he expressed his view that climate change was a distinct issue compared to other air pollutants that EPA has long had authority over, such as mercury and the deadly components of smog.

Here is a section of the transcript, in which Scalia spars with James R. Milkey, who was arguing on behalf of Massachusetts, which was seeking to force the EPA to regulate greenhouse gasses.

Scalia: To be sure, carbon dioxide is a pollutant, and it can be an air pollutant. If we fill this room with carbon dioxide, it could be an air pollutant that endangers health. But I always thought an air pollutant was something different from a stratospheric pollutant, and your claim here is not that the pollution of what we normally call "air" is endangering health. That isn't, that isn't -- your assertion is that after the pollutant leaves the air and goes up into the stratosphere it is contributing to global warming.

Milkey: Respectfully, Your Honor, it is not the stratosphere. It's the troposphere.

Scalia: Troposphere, whatever. I told you before I'm not a scientist. (Laughter.)

Scalia: That's why I don't want to have to deal with global warming, to tell you the truth.

In his dissent, Scalia wrote that the growing amount of greenhouse gases in the atmosphere is a marked departure from other air pollutants that come under the EPA's authority, stating: ..."Regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air."

Scalia also wrote that the Clean Air Act should be interpreted by the EPA, rather than having the court decide how the EPA should interpret that law.

"The Court’s alarm over global warming may or may not be justified,but it ought not distort the outcome of this litigation," he wrote. "This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency."

Here is Scalia explaining his dissent in the EPA case, via video in a 2012 appearance at Rensselear Polytechnic Institute, in which he says, "I don't do science, I do law."

A friendlier climate on the Supreme Court?

With Scalia's death, however, the likelihood that the nation's highest court will strike down the Clean Power Plan now drops significantly, though exactly how low the odds are will depend on the new justice's views on the subject.  

Two scenarios are suddenly in play. 

The first is that the regulations are upheld by the more liberal D.C. Circuit Court, which will hear arguments on June 2, and then are appealed to the Supreme Court, where Scalia's seat may still vacant for much of the 2016-2017 term. If this is the case, justices would likely deadlock on a 4-to-4 vote, which would leave the lower court's ruling in place, and allow the regulations to go forward. 

The wild card possibility is what happens if the case reaches the Supreme Court when a new justice -- either someone appointed by President Obama or his successor -- has taken their seat on the bench. 

Even if a Republican president appoints a conservative justice in 2017, the odds are that they may be at least a little friendlier toward climate change regulations than Scalia was, simply because Scalia was so extreme on this issue. 

For environmentalists, industry interests and international diplomats alike, an open Supreme Court seat will make the 2016 election even more critical from a climate policy perspective.