On Tuesday, the Supreme Court did something without precedent. It temporarily stopped the Obama administration’s Clean Power Plan, a set of electricity-industry regulations that serve as the centerpiece of the White House’s climate-change strategy.
Technically, the Supreme Court “stayed” the rules, meaning the Environmental Protection Agency cannot enforce them until the justices themselves decide their legality. The high court has never before issued a stay on a set of regulations before their initial review by a federal appeals court.
And all through this week, the White House and its domestic allies have been rushing to assure everyone: Don’t worry about this. The court’s move barely even affects the national context—and it’s not going to metastasize much further than that.
“In the last couple of days, I’ve heard people say, ‘The Supreme Court struck down the clean power plant rule.’ That’s not true, so don’t despair people,” said Obama at a Democratic fundraiser Thursday, according to The Washington Post. “This a legal decision that says, ‘Hold on until we review the legality.’ We are very firm in terms of the legal footing here.”
Major environmental groups struck a similarly sanguine tone, saying there was no way the ruling would affect the Paris Agreement, the first global treaty to fight climate change that negotiators finalized late last year.
“Legal experts are confident that the courts will uphold the Clean Power Plan,” said David Waskow, the international climate director at the World Resources Institute, in a statement. “The U.S. administration has been crystal clear about its ongoing support for the Paris Agreement and commitment to achieve its 2025 climate targets.”
That might be overstating the case. Some advocates had hoped that even before the Clean Power Plan kicked in in 2022, it would shape how energy markets worked. The EPA could regulate, the story went, through the power of positive thinking. Some of this is still true: Renewable energy will keep getting cheaper, and U.S. coal companies are doomed no matter what.
But the Court’s stay diminishes that effect, at least in the short term. November’s presidential election will now either ratify or ruin Obama’s fight to mitigate climate change. No remaining Republican candidate for president supports imposing federal limits on greenhouse-gas emissions. If the GOP takes the White House, it could drop the case, and use its control of the executive and legislative branch to help fossil fuel companies by offering subsidies.
But if Democrats manage to retain the presidency, and a future administration defends the deal, then a significant chunk of Obama’s climate legacy will be left to the Supreme Court to decide. Should climate-concerned people really still trust the Clean Power Plan will all work out then? And if Obama’s EPA regulations die, will the global accord on climate that he fought for perish too?
* * *
Not everyone is zen about the Supreme Court’s stay. Seth Jaffe, the former president of the American College of Environmental Lawyers, had predicted in December the Court would not stay the regulation. When it did, earlier this week, he took it as a sign of doom. The Clean Power Plan “is on very shaky ground at this point,” he wrote.
“One has to conclude that five justices have decided that the rule must go,” he said. The terms of the stay are so extraordinary, so unusual, that it means something is up.
“I hope [the advocates of the regulation] win, but my neutral-objective-advice side says this is a hard one for them,” he told me on Thursday. “The advocates can talk all they want about how they have deference, and the Supreme Court has given deference to the EPA in the past. But this really is a big rule that is largely unprecedented.”
Deference is the idea that the courts should give federal agencies some leeway in executing their regulatory duties. In the last 30 years, deference has been applied to labor law and net neutrality, but it takes its name from a 1984 case about the Clean Air Act—the same piece of legislation that the EPA is using today.
What’s legally controversial with the Clean Power Plan is its two-step approach. First, the plan sets regulatory limits on the amount of carbon dioxide that state electricity plants can emit. Second, it establishes a set of incentives and regulations—it calls them “building blocks”—to entice state utilities to switch away from coal-fire power generation toward natural gas, nuclear power, and renewables.
The first step of those two steps—the one that explicitly concerns carbon dioxide—accounts for less than a quarter of the plan’s estimated emissions reductions. The second step clears out all the rest, millions and millions of tons of prevented carbon dioxide. It’s this second step, and those second-order effects, that opponents allege the EPA doesn’t have the authority to set in motion.
The Clean Power Plan draws its legal authority from Section 111 of the Clean Air Act. Recently, a climate-focused legal team at Columbia University proposed that a different part of the law could let the EPA set up new regulations if the Clean Power Plan falls. This section lets the EPA regulate air pollutants if it works with other countries, something that—ka-ching!—it’s doing through the Paris Agreement. Jaffe isn’t so sure about this technique, since the Paris Agreement isn’t legally binding.
* * *
Three large American environmental groups said that, at least in the short term, the stay was unlikely to doom the Paris Agreement. (In a post on Wednesday, I worried that it would.)
“I think the big picture here is that all countries have their own national circumstances that they have to address as they fashion their own response to climate change. And no country’s political and legal issues are as well understood as the United States,” said John Coequyt, the director of federal and international climate campaigns at the Sierra Club.
Alden Meyer, the director of strategy and policy at the Union of Concerned Scientists, said he had been talking to climate negotiators around the world and “there seems to be general understanding that this a procedural ruling.”
“There’s a little bit of nervousness that we’re seeing a repeat of the Kyoto Protocol, where the world accommodated U.S. concerns and then saw it not implement it,” said Meyer. But he said other countries were expressing “a general willingness to wait and see how this plays out in the month to come.”
He added that other nations wanted the United States to affirm the Paris Agreement by signing it on Earth Day, April 22.
Even if the Clean Power Plan falls, there’s some signs that America may make its 2025 emissions target anyway. The Sierra Club believes its own efforts, specifically its super successful Beyond Coal program, will allow the U.S. to comply with its Paris Agreement pledge regardless of what the EPA does. Thanks to the Beyond Coal campaign, “about a third of U.S. coal plans are retired or scheduled for retirement,” Coequyt said.
The Obama administration is also pressing down on emissions by regulating other greenhouse-gas sources, such as airplanes, landfills, and natural-gas harvesters. The EPA has also tightened its national ambient-air-quality standards, which will make running coal plants even more expensive and utilities less likely to build them. And in December, Congress extended a pre-existing tax credits for renewable energy companies to 2020.
“U.S. emissions are declining,” Coequyt told me. “The main factors driving that change have been things other than the Clean Power Plan up until now. If things had not been going well, and the story was the U.S. is going to turn things around with the Clean Power Plan, this would be a big deal.”
But local advocacy, air-pollution rules, and cheap natural gas means that it isn’t. Many utilities plan to move forward on natural-gas and clean-energy plans no matter what happens. And Obama’s policies remain popular: Back in November, two-thirds of Americans and a “bare majority of Republicans” said they supported regulating carbon-dioxide emissions through domestic policy, according to a poll from The New York Times and CBS. So the positive trends on climate change will largely continue—unless, that is, a Republican wins the White House and moves to reverse them.