2/19/16 UPDATE: Since my post on Monday, Todd Stern, U.S. Special Envoy on Climate Change, has weighed in. Speaking from Brussels, where he was meeting with the EU’s Climate and Energy Commissioner, Stern was quoted as saying “it is entirely premature, really premature to assume the Clean Power Plan will be struck down but, even if it were, come what may, we are sticking to our plan to sign, to join. We’re going to go ahead and sign the agreement this year.” He pointed out how different the situation President Obama faces when signing the US on to the Paris Agreement than President Clinton’s support of the Kyoto Protocol that was then abandoned by his successor, President George W. Bush. “Paris was seen as such a landmark, hard-fought, hard-won deal that, for the U.S. to turn round and say we will withdraw, that would inevitably give the country a kind of diplomatic black eye that I think a president of any party would be very loath to do.” He added: “We think we are going to prevail in the court but we are going to go ahead and sign the agreement this year. Period. And we are not in any way going to back away from our 2025 targets.”
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The US Supreme Court granted a stay on Tuesday to the plaintiffs challenging EPA’s authority to devise the Clean Power Plan (CPP) under its Clean Air Act rulemaking authority. In Paris and at home, the CPP has been described as the cornerstone of US pledges under the Paris Agreement.
While a stay is only a procedural decision that stops implementation of a challenged law during litigation, the fact that five out of nine SCOTUS justices granted it caused a collective gasp last Tuesday night in the enviro law community. Why?
First, and foremost, no one was expecting it. The plaintiffs’ motion for a stay had already been denied by the D.C. Circuit (which will hear the case on the merits in June). This ruling was accepted by both sides of the lawsuit as well grounded in precedent. In fact, many saw the appeal to the Supreme Court as a “hail Mary” pass. (No Cam Newton jokes here.) Second, the stay indicates that at least five justices think that the plaintiffs could be harmed by complying with a rule that, when it inevitably arrives at the Supreme Court after the D.C. Circuit’s decision, may be held invalid.
Reading the blogs and Tweets of the last six days, it’s safe to say that the jury is out on what this SCOTUS decision means for the CPP and for the Paris pledges. One slice of expert opinion talks everyone off the ledge by reminding us that it’s just a short-term procedural victory, not a decision on the merits. David Doniger of the Natural Resources Defense Counsel (NRDC) embodies this effort in this interview.
On the impact of the stay at home, there’s a difference of opinion. The Washington Post reported that “about 48 hours after the court’s decision, major utility companies are reacting to the move with a collective shrug.” The largest trade association of electricity providers, Edison Electric Institute, was quoted saying that “electric utilities are investing in clean energy and pursuing energy efficiency” regardless of legal challenges to the CPP — even companies, like AEP, who are listed among the plaintiffs. Pointing to Congress’s recent renewal of clean-energy tax credits and increasing private sector investments in clean-energy projects, EPA Administrator Gina McCarthy adds that “the CPP is underpinning a [market] transition that is already happening and will continue to happen.” States like New York and California immediately called press briefings to state their continued implementation of the CPP. A variety of state official responses, similar in tone, have been collected by the Georgetown Climate Center. Yet Justin Pidot of the University of Colorado School of Law reads the stay as a sign that the coal industry is “too big for EPA to regulate absent an express congressional directive.”
On the international impact of the stay, observers express concern at the high level of international relations more than in the nitty gritty detail of achieving the Paris pledges. Michael Gerrard of Columbia’s Center for Climate Change Law emphasizes that while the CPP is important to the US plan for mitigating GHG emissions, it’s not the only game in town. Gerrard points to several facts in his blog post on Wednesday that the mainstream media hasn’t clearly picked up. First, the CPP doesn’t fully kick in until well into the longer-range US INDC pledges. Citing the US’s Biennial Report (a required communication under the UNFCCC) that was filed just last month, Gerrard points out that the CPP’s actual emissions reductions do not begin until 2022, and thus don’t affect the 2020 pledge of reducing 17% below 2005 levels. In terms of the 2025 pledge of 26% to 28% reduction, Gerrard sees that the US was also relying on fuel economy and energy efficiency standards, phasing out hydrofluorocarbons (HFCs) under the Montreal Protocol on Substances that Deplete the Ozone Layer, reducing methane emissions, and for the ultimate reach, counting forests and other vegetated land masses as GHG sinks.
In contrast, Michael Wara of Stanford Law School believes the US’s international reputation for making good on the Paris Agreement pledges — already weakened by our unreliable behavior on the Kyoto Protocol — took a hit from the stay, especially given our bilateral negotiations with China and India and the role that the CPP-based reductions played in them. (He also sees “significant ramifications” for the U.S. electric power sector given that continued uncertainty in regulating carbon hurts long-term electric utility investments, which could result in higher prices for consumers and competitive disadvantages in trade. (This post from the law firm of Stoel Reeves provides more details on this point.))
Now, with Justice Scalia’s death two days ago and the ensuing debate about who will appoint his replacement, the role of the Court in US domestic climate change law and its international commitments is even more acute.