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  • Robert Wirtz

Supreme Court Rules on Clean Power Act

Only days before the death of Justice Antonin Scalia, the Supreme Court voted on February 9 to issue a stay on the implementation of the Obama administration's Clean Power Act(CPA), which would have required stricter limits on greenhouse gasses emitted by coal-fired electrical power plants. Supporters and opponents of the Court’s decision both view the action as far reaching, affecting the implementation (and legality) of the regulation and the validity of the international climate change accord signed last December by the United States and many other greenhouse gas contributors, including the leader in greenhouse gas emissions, China.

The New York Times quoted Virginia attorney general Patrick Morrisey as saying “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.” West Virginia and other states who challenged the new regulations, rely heavily on coal mining and energy plants as a source of employment and characterize the regulations as an overreach of constitutional authority that would effectively “reorganize the energy grids in nearly every state in the nation.” The new regulations, which one can find on the Environmental Protection Agency’s web page, does not call for full implementation until 2030, but require that states file compliance plans by September of this year and predicts partial emissions reductions by 2022. The states appeal, which was rejected by the US Court of Appeals DC circuit court prior to it’s approval by the supreme court, argued that they were already being forced to reorganize budgets and take on extra costs due to to the regulation. This move might halt the implementation of the regulation for over a year as the DC Circuit Court hears the states’ appeal in early June. Only then will it be available for Supreme Court review. However, after the unexpected death of Justice Antonin Scalia, the fate of the review has been called into question.

Proponents of the Clean Power Plan voiced fears that the stay of implementation will complicate the United States’s ability to comply with the cuts to greenhouse gases agreed upon during the Paris Climate Summit that took place late last year. Although the international agreement does not set fixed levels that countries must meet, it requires the 198 signatories to create a "nationally determined contribution" and explain how they will reach these contributions. Unsurprisingly, the Clean Power Plan was a key part of the US’s own nationally determined contribution, which makes supporters wonder how other nations will react to the stay. Individuals worry that China and India, two nations with large populations and levels of pollution which have been reluctant to cut emission levels in the past, may back out of the deal if the US cannot meet its own goals. Zou Ji, the Deputy Director General of China’s National Center for Climate Change Strategy and International Cooperation, a government think tank in Beijing, who was quoted by the New York Times on February tenth as saying “[i]f the American clean energy plan is overturned, we’ll need to reassess whether the United States can meet its commitments.”

However, some supporters of the CPA see room for optimism, especially after the unexpected death of conservative stalwart of Justice Antonin Scalia. While a stay has been granted, the CPA itself has not been struck down, and cannot be until the Supreme Court or the DC Circuit Court hears the case. However, with the Supreme Court now left in a four/four deadlock, the decision of the lower court will most likely stand. If the DC Circuit Court’s initial refusal to issue a stay is a reliable indicator of the future, it seems that the Clean Power Act will likely see implementation. In an ironic twist, Senate Republicans’s refusal to accept any Obama nominee to the court may indeed lead to the President prevailing in another arena. However, the decision is still months away. Just as the fate of the Act was thrown into contention last Tuesday, so might the situation change once again.

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