Supreme Court stay, vacancy raise questions about Clean Power Plan's future

by Brian Roewe

NCR environment correspondent

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Is it a pause, a setback or a sign of collapse?

In issuing an unprecedented decision to put the Clean Power Plan on hold, the U.S. Supreme Court rattled the ground beneath President Barack Obama’s signature climate policy and the backbone to U.S. commitments to the Paris Agreement. But whether the carbon regulations survive the shake of legal scrutiny could lie in the replacement of Justice Antonin Scalia, whose death-turned-political-pawn will likely factor into how the nation’s highest court decides on the plan.

Despite the pending legal process and unfolding political games, Catholic and other environmental groups, along with a dozen-plus states, remained confident the carbon rules will survive the litigation gauntlet, and that the Clean Power “pause” doesn’t halt the need for carbon-reducing policies to push ahead.

On Feb. 9, the Supreme Court issued the stay, essentially freezing the U.S. Environmental Agency from moving forward with the Clean Power Plan. Announced in August 2015, the plan targets 32 percent reductions of carbon emissions from the power sector (primarily coal-fired plants) from 2005 levels by 2030. States must comply by 2022, with the first deadline for individual plans -- September 2016 -- now delayed by the stay.

More: "EPA unveils Clean Power Plan, as faith groups quick to embrace​" (Aug. 5, 2015)

The temporary stay does not impact other deadlines, however, said Sara Colangelo, director of the environmental law and policy program at Georgetown University. Moreover, it is not a ruling on the merits, which the Court didn’t consider in this decision.

Colangelo told NCR that the stay was unprecedented, as the Supreme Court has never before granted such a request of a regulation before a federal appeals court reviewed it on the merits.

The U.S. Court of Appeals for the District of Columbia Circuit, which will hear oral arguments beginning June 2 and possibly rule by the fall, had unanimously denied a stay. The Supreme Court stay remains in place pending the D.C. appeals court ruling. Should the case, as expected, advance to the Supreme Court, the stay holds until it either denies the case or renders a judgment.

While the stay caught many off-guard, it remained unclear how big a blow, if one at all, it represents to the Clean Power Plan.

“I don’t think it’s a setback right now. I think we’ll learn in short order when the Court of the Appeals looks at this more closely this summer,” Colangelo said.

“Make no mistake -- this is a great victory for West Virginia,” said the state’s Attorney General Patrick Morrisey, who along with Texas led a coalition of 26 states opposing the EPA rules. (North Dakota later filed its own application.) “We are thrilled that the Supreme Court realized the rule’s immediate impact and froze its implementation, protecting workers and saving countless dollars as our fight against its legality continues.”

In their stay application, the 26 states argued the Clean Power Plan “is an unprecedented power grab by EPA that seeks to reorder the Nation’s energy grid,” and that an agency can’t exercise such power without “clear congressional authorization.”

EPA, in turn, has argued it has jurisdiction to regulate carbon pollution from power plants under the Clean Air Act.

Despite the pause, a number of states -- including California, Colorado, Pennsylvania, Virginia and Washington -- have pledged to continue the planning process.

“We are confident that once the courts have fully reviewed the merits of the Clean Power Plan, it will be upheld as lawful under the Clean Air Act. Our coalition of states and local governments will continue to vigorously defend the Clean Power Plan -- which is critical to ensuring that necessary progress is made in confronting climate change,” said New York Attorney General Eric Schneiderman, speaking on behalf of 15 states, five cities and the District of Columbia.

Since its initial proposal in summer 2014, the Clean Power Plan has drawn support from much of the faith community, including the U.S. bishops and numerous Catholic congregations and organizations.

“It’s been on our radar screen for some time, the last two years at least,” said Dan Misleh, executive director of the Catholic Climate Covenant. The group urged Catholics to submit comments to the plan and also held a series of panels to discuss the national carbon rules and why Catholics should support them.

More recently, Misleh’s organization has sought to raise support for the carbon-limiting standards in key states -- including those like Ohio involved in the litigation -- to let them “know that the Catholic church is fully on board with reducing these emissions.” A go-to citation comes from Pope Francis in “Laudato Si’, on Care for Our Common Home”: “We know that technology based on the use of highly polluting fossil fuels -- especially coal, but also oil and, to a lesser degree, gas -- needs to be progressively replaced without delay.”

More: "EPA chief at Vatican: Obama 'aligned' with Francis on climate change" (Jan. 30, 2015)

In an October survey conducted by Yale University and George Mason University, 68 percent of Catholics either strongly or somewhat supported strict carbon emissions limits on coal-fired power plants to combat global warming and improve public health; 74 percent supported regulating carbon as a pollutant. Roughly the same percentage responded the same way when asked both questions seven months earlier in March -- or three months before the release of Laudato Si’.

The Court's delay of the Obama administration's focal climate policy, Misleh said, does not alter the moral obligation to act to reduce carbon pollution associated with climate change. Days after the stay was issued, a Covenant action alert asked supporters to urge their senators to back the Clean Power Plan.

“As Catholics, we understand the perils of greenhouse gas pollution and its contribution to climate change which is already impacting the globe and threatens future generations and God’s beautiful creation. We believe we all have a moral obligation to lower carbon pollution, to protect people from climate impacts and to safeguard human health from toxic emissions,” the alert stated.

“Whether or not these standards go forward, it’s really important that we begin to reduce our dependence on fossil fuels, particularly in the energy sector,” Misleh told NCR.

Other environmental groups expressed similar sentiments during a press call days after the stay.

“While SCOTUS may have put this on hold, the fate of the coal industry and the shift to clean energy is not on hold,” said John Coequyt, Sierra Club’s director of federal and international climate campaigns. Coequyt pointed to Sierra’s legal success in retiring 231 coal plants in the past five years, and underscored a combination of rising coal costs (while other energy sources drop) plus the closing of pollution-evading loopholes as leading to America’s ongoing energy transition.

“The main thing to point out here is it is not the case that the CPP is driving all of the change in the electric sector. A delay, a stay of this plan, is not going to mean that emissions reductions don’t meet the initial 2022 targets under the Clean Power Plan,” he said.

Joanne Spalding, Sierra Club chief climate counsel, added that the 2022 compliance deadline could have led the justices to see no harm in staying the rule while litigation plays out.

That the Clean Power Plan would face political hurdles was no surprise to international observers, said Alden Meyer of the Union of Concerned Scientists on the press call, speaking from a climate strategy meeting in Berlin. Questions will arise, he said, regarding the U.S. commitment to the Paris Agreement, the international platform adopted in December for addressing climate change. But he didn’t foresee other nations, including India and China, hinging their own pledges on the U.S., instead recognizing benefits to their national self-interests.

More: "Nearly 200 nations adopt historic Paris Agreement, set path for action on climate change" (Dec. 12, 2015)

“Climate change is now a geopolitical issue of the top order,” Meyer said, adding that should the next president disavow the U.S. commitment, there would be “tremendous blowback” from the international community on priorities of the new administration.

“This would not be a cost-free decision,” he said.

The Supreme Court stay, by 5-4 vote, represented one of the final judicial acts of Scalia before his death four days later. Scalia, a Catholic, joined the other justices in the Court’s conservative-leaning bloc in granting the stay.

His track record on environmental cases was not uniformly pro or against, said Colangelo, a former attorney in the Justice Department’s environmental enforcement section, but rather “consistent with his judicial principles of originalism and textualism.”

Scalia dissented in Massachusetts v. EPA, which in 2007 authorized EPA to regulate greenhouse gases; six years earlier, he wrote the decision in Whitman v. American Trucking Assns., Inc. that affirmed EPA’s authority to establish National Ambient Air Quality Standards under the Clean Air Act, without consideration of implementation costs.

Though the stay doesn’t necessarily indicate how the justices would rule on the case’s legal merits, Scalia’s death sets up the possibility for a 4-4 split should the Clean Power Plan reach the Court before his replacement -- a possibility should the nomination process slog into the next presidency. Under that scenario, the Court of Appeals decision gains greater import, Colangelo said, as a divided court upholds the lower court ruling. Re-argument at a later date, when a new justice is more likely confirmed, is also an option. 

 [Brian Roewe is an NCR staff writer. His email address is Follow him on Twitter: @BrianRoewe.]

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