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What Scalia’s Death Means for Obama Climate Agenda’s Implementation

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Josh Siegel / / / The Daily Signal

The Obama administration's Clean Power Plan would regulate emissions from coal-fired power plants, like this one in Wyoming.

The Obama administration’s Clean Power Plan would regulate emissions from coal-fired power plants, like this one in Wyoming.

Supreme Court Justice Antonin Scalia’s death will likely help the Obama administration implement its landmark climate change plan regulating coal emissions.

The shift in momentum comes after the Supreme Court last week, before Scalia’s death, voted to temporarily block the Clean Power Plan from being enforced as it makes its way through the legal process.

That decision was seen as a major blow to President Barack Obama’s climate change agenda, since the plan is the central element of the U.S.’ pledge to reduce emissions as part of a U.N. climate change pact signed in Paris in December.

The Clean Power Plan, an Environmental Protection Agency regulation meant to encourage the use of renewable fuels and natural gas, would commit the U.S. to lower carbon dioxide emissions from coal-fired power plants by 32 percent by 2030 compared to 2005 levels.

It would require every state to submit a plan between 2016 and 2018 for reducing carbon emissions.

Business and industry groups, and 27 states — led by West Virginia and Texas — are challenging the rule in court, arguing the EPA doesn’t have authority under the Clean Air Act to regulate carbon dioxide in such a way.

These opponents argue that the shift away from coal as a power source will increase electricity prices. The EPA, meanwhile, predicts consumers would save money through improvements in energy efficiency.

The Supreme Court has not yet considered the plan’s legality because the U.S. Court of Appeals for the District of Columbia Circuit still has to review it.

The appeals court is set to hear oral arguments in the case on June 2.

But the Supreme Court’s 5-4 vote last week issuing a “stay” on the plan suggested that the five Republican-appointed justices were prepared to strike the plan down when they got the chance.

“The short answer is this development makes it substantially more likely the Clean Power Plan will ultimately survive in court,” said Michael Gerrard, a law professor at Columbia University and the director of the Sabin Center for Climate Change Law.

“The 5-4 vote imposing the stay on the plan was a very bad omen about how the Supreme Court felt about the Clean Power Plan. Now that the 5th vote is gone, the ultimate result will depend very heavily on who fills the empty seat.”

Most experts expect a three-judge panel of the D.C. Circuit Court to uphold the climate plan, since it declined to grant a “stay” before the Supreme Court did so. The randomly drawn appeals court panel includes two Democratic appointees and one Republican.

If the D.C. Circuit Court found the climate plan to be legal, the industry groups and 27 states that are suing to overturn the plan will inevitably ask the Supreme Court to review the case.

The high court will undoubtedly accept the request to review the case.

If the Supreme Court took up the case this term and voted 4-4, with a split between the Republican and Democratic-appointed justices, the lower court’s ruling would be upheld.

In that scenario, the stay on the plan would end at that moment, and it could be implemented.

“If the D.C. Circuit Court upholds it and the Supreme Court splits 4-4, the lower court ruling stands and that ends the stay,” Gerrard said.

While a 4-4 split would temporarily leave the prior court ruling in place, the Supreme Court will likely order the case reargued once a new justice is confirmed. So the ultimate future of the climate plan will likely depend on the vote of whoever succeeds Scalia.

And with the Senate threatening to not let Obama advance his choice for Scalia’s successor, the ideological makeup of the next Supreme Court justice, and that person’s vote on the climate plan, could very well swing on which party wins the presidency.

“The next vote will probably be the deciding one,” said Carrie Severino, the chief counsel and policy director at the conservative Judicial Crisis Network, and a former law clerk to Supreme Court Justice Clarence Thomas.

“This was already an election for the ages and it just went up to an 11 on a one-to-10 scale,” Severino told The Daily Signal. “The presidential election is really the opportunity for the American people to say what direction they want to take the Supreme Court.”

If a Republican who opposes the carbon regulations won the White House, that person won’t necessarily need to depend on the judiciary branch to overturn the EPA’s plan.

A Republican president could work with a GOP-controlled Congress to pass a bill repealing the plan. That person could also reverse Obama’s climate policies administratively, but that would be a difficult process.

“If there is a final order upholding the EPA rule, the president cannot willy nilly immediately overturn it,” said Alden Abbott, a senior legal fellow at The Heritage Foundation. “It has to go through the Administrative Procedure Act, meaning the president has to have some justification to overthrow the rule.”

And no matter the outcome in the courts, or whatever the next president decides to do, some states will undertake action on their own to reduce carbon emissions from coal-fired plants.

“If there were no EPA Clean Power Plan, it’s not a prohibition on anyone doing planning that they want to do; it would just mean they can’t be forced to act,” Gerrard said. “Several states are already preparing their plans despite the stay.”

The Georgetown Climate Center has been tracking which states have publicly stated they plan to comply with the Clean Power Plan in some form, even as the regulation faces an uncertain future.

Kate Zyla, the deputy director of the center, tells The Daily Signal that 21 states have made such a commitment.

“I think the stay introduced uncertainty, and Scalia’s death brought additional uncertainty, so a lot of states are saying, in the face of uncertainty, it’s prudent to keep going, even if they are not fans of the rule,” Zyla said.

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