February 10, 2016

Supreme Court Plays Politics with the Clean Power Plan


Patrick Parenteau

by Patrick Parenteau, professor of law, Vermont Law School  

In a move that stunned even the most seasoned court watchers, the conservative majority of the U.S. Supreme Court has blocked the Environmental Protection Agency’s Clean Power Plan, which seeks to reduce carbon pollution from coal-fired power plants. The unsigned order, without any explanation, puts a hold on the rule pending the outcome of proceedings currently underway in the D.C. Circuit, which had earlier denied a stay. Justices Ginsburg, Breyer, Kagan and Sotomayor voted against the stay.

This action is unprecedented in a number of ways. The majority made none of the findings typically required to obtain a stay. There is no analysis of the merits of any of petitioners’ claims. There is no showing that the rule threatens any immediate harm to petitioners, especially given the long lead times EPA has built into the process. There is no showing that the balance of hardships tips decidedly in favor of the petitioners, especially given the fact that most states are well into the process of developing implementation plans and those that do not want to submit a plan don’t have to. There is no showing that the stay is in the public interest, especially given the warnings from the scientific community that time is fast running out to avoid catastrophic consequences of climate disruption. Never before has the Court interjected itself in a case with such high stakes that hasn’t even been fully briefed and argued before the lower court.

Some have speculated that the majority may be reacting to what happened last term in Michigan v. EPA (the mercury rule case). By the time the case got to the Court, over two years had passed and 80 percent of the industry had already complied with it. Thus, when the Court found a flaw in EPA’s cost analysis, it was faced with a fait accompli which no doubt irked the conservatives. But it would be a sad comment on the Court’s integrity if the decision to issue a stay was motivated by pique or distrust of the agency.

To be sure, there are serious legal questions that must be resolved in this case. But there is no reason for a knee jerk reaction that throws a monkey wrench into the ongoing planning process. The D.C. Circuit has adopted an expedited briefing schedule with arguments to be held in June. The states have until September 2018 to submit their plans. The first compliance date is almost seven years off. There is ample time for a more deliberate and careful examination of the voluminous record that EPA has complied in support of this complex and finely wrought plan, and nothing will be lost by having the states engage in the process of determining the best path that provides affordable, reliable, clean power for their citizens.

It would also be naïve not to recognize that this move is an ominous sign for the survival of the Clean Power Plan intact. The fact that the conservatives on the Court are willing to short-circuit the normal judicial process to spike the rule does not bode well for the ultimate outcome. However, there is some reason for hope in the fact that the changes underway in the energy markets are moving fast in the same direction as the plan and may in fact overtake it. Renewables are the fastest growing sector of the electricity sector. A recent peer reviewed study shows that carbon dioxide emissions from the U.S. electricity sector can be reduced by up to 80 percent relative to 1990 levels by 2030 without new advances in energy storage or cost increases.

It would also be a mistake to pin all of our hopes on §111(d) of the Clean Air Act. There are other tools in the tool box. A recent report by a team of climate and energy scholars at Columbia, New York University and UCLA law schools shows how §115 (“International Air Pollution”) can be deployed to create an economy-wide, market-based system of GHG regulation that would achieve far more reductions than any other single mechanism. Section 115 is triggered when (1) EPA finds that emissions in the United States contribute to air pollution that endangers public health or welfare in another country, and (2) EPA determines that the other country provides "essentially the same rights with respect to the prevention or control of air pollution occurring in that country as is given that country" by Section 115. EPA has already made the endangerment finding for GHGs. The authors of the study argue that the Paris Agreement, containing pledges by 196 nations to reduce carbon pollution according to “Nationally Determined Contributions,” opens the door to a finding of reciprocity. This is a bold idea with lots of legal questions and details to be worked out by the next administration, hopefully one interested in tackling climate change.

One final note: If nothing else, the preemptive, unprincipled move by the conservative wing of the Court underscores the critical nature of the upcoming presidential election. It is likely that the next president, particularly if she or he gets two terms, will have the opportunity to appoint three justices to the Court. That has enormous implications for the future of environmental law and policy in the United States, as well as many other social programs and individual rights.