Gas, Renewables

Scalia and the Clean Power Plan

Last month, the U.S. Supreme Court voted 5-4 to place the controversial Clean Power Plan (CPP) on hold, confirming our belief that the high court would ultimately strike down the Obama administration’s plan to cut greenhouse gas emissions from U.S. power plants.  

But the result we envisioned was shattered just a few days later when Supreme Court Justice Antonin Scalia, who sided with the 5-4 conservative majority to stay the plan, unexpectedly died at a remote Texas ranch. Suddenly, the most far reaching energy-sector regulation is more likely to survive the legal challenge from 27 states claiming the federal government does not have the authority regulate greenhouse gas emissions from power plants.

The case is now before the D.C. Circuit Court of Appeals. Oral arguments are expected to begin in June. The appeals court is expected to issue a decision this fall, which will almost certainly be appealed and placed before the Supreme Court for a final ruling in spring 2017.

Scalia’s death sets up a huge political showdown in Washington D.C., where President Obama will attempt to convince a Republican-controlled U.S. Senate to confirm a new justice before he leaves office in January. An Obama appointee is, of course, more likely to join the four liberal justices in upholding the CPP than voting with the four remaining conservative justices to strike it down.

Shortly after Scalia’s death, Senate Majority Leader Mitch McConnell declared the seat should remain vacant “until we have a new president.” The Kentucky Republican later reiterated his position in a Feb. 19 opinion piece published in the Lexington-Herald Leader newspaper. McConnell wrote that he favors “deferring action in the Senate” until voters choose the next president in the approaching presidential election in November. Senate Republicans have rallied behind McConnell.

Though they face an uphill battle, Senate Democrats are strategizing in hopes of holding confirmation hearings for an Obama appointee. This, however, is unlikely.

Almost as unlikely is a new president confirming Scalia’s replacement in time to vote on the controversial CPP. If a new justice cannot be confirmed in time, the vote would most likely be split evenly between the four liberal justices and four conservative justices in a 4-4 stalemate. An even split would trigger an automatic affirmance of the lower court’s ruling. In this case, the lower court would be the D.C. Circuit. Although we don’t know how the lower court will vote, two of the three judges assigned to the case were appointed by Democrats and may favor the EPA.

To avoid a stalemate, though, the high court could simply delay any action until Scalia’s replacement is confirmed.

Both Democratic Presidential candidates – Hillary Clinton and Bernie Sanders – support the CPP. All of the Republican candidates oppose it.

No one was surprised when in late January the D.C. Circuit Court of Appeals denied several motions to stay the EPA’s Clean Power Plan. “You have to show imminent harm,” said Alexandra Dunn, executive director of the Environmental Council of the States. “No plants are going to shut down because of the initial submittals.”

Most expected the Supreme Court to sit on the sidelines until the D.C. Circuit issued a final ruling on claims from the 27 states opposed to the CPP. Instead, the Supreme Court, for the first time in U.S. history, stayed a regulation that was still being reviewed by a lower court.

It was an unprecedented move that was followed by another shocking and sad development that will likely change the outcomes of many important cases now in front of the Supreme Court. Scalia’s death will have a lasting effect on the legal community, and the consequences may not be fully realized anytime soon.  However, it is abundantly clear that his death has improved Obama’s odds on implementing his environmental legacy.

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