WASHINGTON -- Climate change isn't getting much play in presidential politics, but the Supreme Court on Tuesday issued an astonishing reminder of the fractious politics of environmental justice -- and the stakes for who next occupies the White House.
In a series of unprecedented orders, the five conservatives on the court sided with a consortium of states and industry groups to effectively apply the brakes on the future of President Barack Obama's environmental legacy.
The fate of the Environmental Protection Agency's Clean Power Plan, an ambitious regulatory regime that calls for a 32 percent reduction in carbon dioxide emissions from power plants -- mainly coal-fired ones -- by 2030, now hangs in the balance. And it will stay that way until well after the next president takes office.
To get a sense of how key the carbon rule for existing power plants is to Obama's legacy on climate, consider the EPA's own description of it in its 2017 budget proposal to Congress -- announced, as fate would have it, on the same day of the Supreme Court’s action:
The Clean Power Plan is the top priority for the EPA and the central element of the U.S. domestic climate mitigation agenda.
The Supreme Court didn't explain why it blocked the EPA rule from going into effect. On their face, the five orders are merely procedural -- they only say the Obama administration's carbon emissions plan is "stayed" until litigation over its validity is over. The U.S. Court of Appeals for the D.C. Circuit, a court regularly tasked with reviewing federal agency action, will hear an expedited appeal from the challengers in June.
But given the complexity of the case and the numerous actors involved -- including more than 25 GOP-controlled states, the U.S. Chamber of Commerce and some of the biggest players in the coal industry -- it is not at all clear that a decision, let alone one favorable to the government, will come down before Obama leaves office.
But what is clear is that at least five justices are willing to take a hard look at whether the EPA fashioned the carbon emissions rule within the confines of the Clean Air Act, which Congress passed in 1963 and has amended several times since to authorize the agency to regulate hazardous air pollutants from various sources.
According to the EPA, the new rule was designed to "avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond," among other policy goals.
The Supreme Court on Tuesday didn't pass judgment on the rule's legality or objectives. But it almost certainly will, because it hears industry-backed cases against the EPA's authority all the time.
Just last year, it ruled against the Obama administration -- also on a 5-to-4 vote -- on its “unreasonable” interpretation of the Clean Air Act with respect to its first regulations on mercury, arsenic and toxic gases from power plants. The court reasoned that the administration did not take into account the costs of the rule for utilities and others across the power sector.
Jonathan Adler, a Case Western law professor who specializes in administrative law, pointed out that it may have been the government’s own conduct in the aftermath of that decision, Michigan v. EPA, that prompted the justices to act more boldly in this new round of Clean Air Act litigation -- and issue a sort of rebuke to the EPA with the stay of the new plan.
After the ruling in the Michigan case, the “EPA boasted in an official blog post that the Court’s decision was effectively a nullity,” a group of 29 states said in their petition asking the Supreme Court to halt the implementation of the new carbon emission rules.
Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action. Law professor Jonathan Adler
Indeed, the EPA chief, Gina McCarthy, seemed confident last year that the agency would achieve its goal to curb toxic gases -- even if it lost at the Supreme Court in the Michigan case.
“This is a rule that actually regulates toxic pollution emissions from primarily coal facilities, and we think we’re going to win because we did a great job on it,” she said in an HBO interview with Bill Maher, according to The Hill.
“But even if we don’t, it was three years ago. Most of them are already in compliance, investments have been made, and we’ll catch up. And we’re still going to get at the toxic pollution from these facilities,” she said.
Then there’s promotion of the Clean Power Plan itself. When it announced the plan, the White House time and again touted its historic nature and the role it would play in the upcoming climate change talks in Paris -- all while its future was far from settled in the courts. When the Paris deal was finally struck in December, the president made the EPA plan a centerpiece of his announcement.
Now the U.S.’s own end of the Paris deal hangs in the balance, too.
“Put another way, an unprecedented assertion of regulatory authority may itself have justified an unprecedented exercise of the Court’s jurisdiction to stay the agency’s action,” Adler wrote.
Legal experts from the Sierra Club and Georgetown Law concurred that the orders were “uncommon,” but noted there have been prior cases in which the Supreme Court issued a stay and the administration later won a successful ruling in the court.
“This is a time of uncertainty but this is not the end of the Clean Power Plan,” said Kate Zyla, deputy director of the Georgetown Climate Center.
Echoing its talking points from Tuesday evening, the White House again on Wednesday downplayed the Supreme Court’s move and looked ahead to the court battle.
But when asked if the president had a Plan B in case the Supreme Court ultimately strikes down the carbon rule, White House spokesman Eric Schultz deflected and repeated that the administration is confident the rule will be upheld.
As has been case with other challenges where Obama’s executive authority has been called into question -- on the Affordable Care Act, contraception regulations and a major multi-state lawsuit on immigration -- the Supreme Court will have the last word.
Cristian Farias reported from New York, and Laura Barron-Lopez reported from Washington.