Climate Change, the Supreme Court and Presidential Politics

If you follow current events in environmental policy, you’ve been getting a real lesson in Constitutional checks and balances among the three branches of federal government. And if you consider yourself an environmentalist, you’re probably as shocked and angry as we are about the U.S. Supreme Court’s decision last week to stay implementation of EPA’s Clean Power Plan (CPP).

This decision overturned a lower federal court’s decision and occurred months before that court (the DC Circuit Court of Appeals) was scheduled to rule on the merits of a lawsuit challenging the legality of the CPP. The lawsuit was brought by 29 coal-burning/mining and oil-producing states, along with other fossil-fuel industry interests.

The Supreme Court’s 5-4 ruling was along ideological lines, with five of the more conservative justices voting to block the CPP and the four progressive judges voting against the stay. The CPP is EPA’s primary regulatory tool for achieving carbon reductions over the next 10+ years, and it’s our nation’s best hope for achieving the progress called for in the Paris Agreement. It’s also pretty flexible, setting carbon reduction targets and giving each state wide latitude to figure out specific plans. Fundamentally though, it’s focused on forcing coal-fired power plants to reduce their carbon footprint or shut down.

indexSo the Supreme Court’s decision was a huge victory for the climate deniers and a major setback for the rest of us. Below are links to two of the many recent articles and opinion pieces about the SCOTUS’s ruling. inside-the-most-important-supreme-court-case-in-human-history supreme-court-blocks-obama-epa-coal-emissions-regulations

As a result, in just a few short months, “climate realists” went from the highest of highs (COP21 and the Paris Agreement) to the lowest of lows. Count the UConn@COP21 group among the devastated. About a month ago, a colleague from the University of Colorado – Boulder posted a triumphant blog about the Paris Agreement. He remarked about how, in the weeks leading up to the Climate Summit in Paris, the presidents, chancellors, or other EVPs at more than 300 colleges and universities (including UConn), had signed a pledge advanced by the Council on Environmental Quality and Second Nature, reaffirming our commitments to climate leadership.

Then, the strangest twist of fate occurred last weekend. The Supreme Court’s most conservative member, Justice Antonin Scalia, died unexpectedly while vacationing at a Texas resort – may he rest in peace. But had he died a week earlier, SCOTUS would have been deadlocked in a 4-4 vote and the lower court’s ruling rejecting the stay of the CPP would still stand.

The net result of this sequence of events, is that the issue of climate change, already far more politicized than it should be in the U.S., has now become even more entangled in the highly-polarized Presidential campaign. Under the Constitution, the President nominates federal judges to fill any vacancy, like Scalia’s, and the U.S. Senate then approves or rejects those nominees. The next appointee to the SCOTUS could dramatically influence the outcome of close decisions on the most politicized issues for decades to come, including the likely appeal of the lower court’s decision in the CPP case.

eiffel tower 2 horizConservative Republicans who control the U.S. Senate, mostly representing states that are still heavily dependent on cheap and dirty coal for generating electricity, are threatening to block approval of any nominee advanced by President Obama. Meanwhile, the more progressive West Coast and Northeastern states, like Connecticut, which have long since transitioned away from coal, might actually stand to gain an economic advantage through the enactment of the CPP. Our state and others are joining EPA in the legal defense of the CPP and would like to see the President appoint a climate realist to SCOTUS, sooner rather than later.

It seems like now might be a good time for higher education to exert some climate leadership. With the Supreme Court’s decision, climate realists are on the ropes and the climate deniers are closing in for a knockout. EPA simply cannot lose this case! The CPP would have obvious air quality and public health benefits, all the way up to preventing the most catastrophic consequences of global warming per the Paris Agreement. But what can we do? Is there a role for law school faculty and students? If so, I hope our best and brightest are willing and able to step up to the challenge.

– Rich Miller, Office of Environmental Policy Director