New Supreme Court Appointee May Decide the Fate of the Clean Power Plan

Lisa Markowski for Zondits, February 16, 2016. Image credit: Mark Fischer (modified)

Just four days before the death of U.S. Supreme Court Justice Antonin Scalia, the SCOTUS voted 5-4 to put the Obama administration’s Clean Power Plan (CPP) on hold. The ruling will allow time for the lawsuits filed by twenty-seven states opposing the CPP to be resolved. But the loss of one of its conservative members leaves the Supreme Court neutral on the issue, meaning that its new appointee – who may not be approved until the next presidential term – will hold the deciding vote.

The CPP is a multifaceted initiative that requires states to incorporate more renewable energy and reduce greenhouse gas emissions from power plants in an effort to slow climate change, improve public health, and lower residential energy bills. The District of Columbia and three states – Alaska, Hawaii, and Vermont – are exempt from the plan. September 2016 was set as the deadline for each state to submit its individual plan for achieving these emissions reduction goals, but that date has now been nullified by the opposition that developed. Led by coal-rich West Virginia, the states opposing the CPP contend that the Environmental Protection Agency has overstepped its authority in implementing the plan.

The SCOTUS is not expected to revisit its decision to halt the CPP, but rather to hear the opposition’s case as either an eight-member Court or as a nine-member Court after its new member is appointed. Since the Senate Republicans declared almost immediately following Scalia’s death that they will reject whomever President Obama nominates, there is no indication that this complex matter will be resolved any time soon—especially considering the inevitable appeals that will follow. If the current eight-member SCOTUS hears the case and returns the expected 4-4 tie, then the District of Columbia’s Circuit Court of Appeals would decide the case. The D.C. Circuit is scheduled to hear the case in June, but a final decision may not come until 2018.

The states that have filed suit are Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, New Jersey, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, South Dakota, Texas, Utah, West Virginia, Wisconsin, and Wyoming. Nineteen states support the CPP, and four states have neither filed suit nor pledged support.

Will a Reconfigured Supreme Court Help Obama’s Clean-Power Plan Survive?

The Atlantic, February 14, 2016
The death of U.S. Supreme Court Justice Antonin Scalia on Saturday sets up a battle between the White House and the Senate over who will nominate a new associate justice—a dispute over governing norms and constitutional imperatives, played out in the most powerful republic in the world.The outcome of that fight could also exert unusual influence over the health of the planet and the survival of its natural systems. For although Scalia’s death has already changed the outlook for a number of cases now in front of the Supreme Court, it will also alter the shape of one that will soon arrive: the legal battle over the Clean Power Plan.The Clean Power Plan is the new set of Environmental Protection Agency regulations that anchors the Obama administration’s climate-change policy. It seeks to guide local utilities away from coal-fired electricity generation, and toward renewable energy and natural gas, a change that the Department of Energy says will forestall hundreds of millions of tons of greenhouse-gas emissions. The plan’s survival—and its entry into law—could decide the fate of the Paris Agreement, the first international treaty to mitigate climate change. For a case that will ultimately turn on administrative law, it’s hard to imagine the stakes being much higher.

 There are two questions to ask when gaming out the future of this particular case. First, would the Court revisit its stay on the rule, allowing the EPA to proceed to implement the regulations? And second, if the Court does hear the case about the Clean Power Plan, could its new membership change its decision?
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