Share us:

Judicial Update on Climate Change

4 years ago | Apr 26, 2016
By: Chris Carey
The United States Supreme Court has been in the news a lot in the last few months. The death of Justice Anthony Scalia injected political controversy into an already contentious presidential election, and raised the stakes for several high profile cases. One of those cases involves an attempt to prevent the implementation of new Environmental Protection Agency (EPA) regulations of carbon dioxide. In this post I'll get you caught up on the progression of the case and tell you what's next for the Obama's key climate initiative.

Following the announcement of the President Obama's Clean Power Plan in August,15 states including Kansas submitted an Emergency Petition at the D.C. Circuit Court to 'stay' the new regulations. A 'stay' is just a fancy way of saying that someone wants an action postponed until a pending matter is taken care of (here is a legal dictionary definition if you are interested). In this case, these states were asking the Court to delay the immediate implementation of the Clean Power Plan until the Court decided a lawsuit on whether or not the new rules were constitutional. The D.C. Circuit denied the request for a stay but granted a request for an expedited hearing on the case (labelled West Virginia et al. vs U.S. Environmental Protection Agency, et al). In January, 29 states including Kansas then asked the Supreme Court to issue a stay on the Clean Power Plan. On February 9th, the Court granted the request for a stay on a 5-4 decision. This means that no state is required to begin abiding by the emissions reduction targets in the Clean Power Plan until the judicial system finishes deciding the case.

Currently the case is waiting to be decided at the D.C. Circuit Court of Appeals. This court is a federal court of appeals and is one level of jurisdiction below the Supreme Court. For a great detailed description of how the federal court system works, check out this article from the Federal Judicial Center. The D.C.Circuit Court will hear oral arguments on the case on June 2nd and a final decision will be issued later this summer or early in the fall. Unfortunately the case will likely not end there.

Regardless of who wins at the D.C. Circuit, legal experts say the other side is likely to appeal the case for immediate review at the Supreme Court. However, the outcome of this round of court battles could implicate the final outcome of the case should it reach the Supreme Court because of Justice Scalia's recent death. This is where things get tricky. While the D.C. Circuit Court is made up of eleven active judges, they hear oral arguments for cases in three judge panels. The three judges who will decide the EPA suit are Karen Henderson, Judith Rogers, and Sri Srinivasan. As followers of the D.C. Circuit have noted, this is a favorable panel for the EPA given their ideological leaning and past rulings on environmental cases. Analysts familiar with the case say the District Court will likely uphold the Clean Power Plan, setting the stage for a battle at the Supreme Court.

This is good news for the environment because of an interesting judicial procedure triggered by the death of Justice Scalia. If the case goes to the Supreme Court and  is heard by the current panel of eight justices rather than the full panel of nine, a 4-4 tie vote is in play. Scalia was one of the five conservative leaning Justices who supported the stay. With his absence, it is likely that four Justices will support the regulations and the other four will oppose them (based on the votes cast for the stay motion and the ideological leanings of the Justices). When the Supreme Court ties on a decision, the ruling of the lower court (in this case, the D.C. Circuit Court) is upheld. This means that if the appellate court upholds the Clean Power Plan and the Supreme Court vote is a 4-4 tie, the regulations would go into effect.

The Clean Power Plan was the cornerstone of the U.S. commitment to reduce carbon pollution at the Paris Climate Conference, and ensuring its continued implementation is essential to international efforts to mitigate climate change. While it is important to ensure that new regulations are given thorough consideration by our judicial system, it is also imperative that action is taken now to reduce greenhouse gas emissions. States should be proactive and begin developing plans to transition to clean fuel sources. Kansas shouldn't wait until the lengthy judicial process has concluded to prepare its own plan to contribute to climate solutions. At CEP, we have already put together some ideas for how Kansas can meet the Clean Power Plan targets in an affordable and cost-effective way. I would caution against recent efforts in Topeka to  discourage such action, and am hopeful that Kansas can be a model for the rest of the country in leading the way towards a clean energy economy. 


Comments (0)

No comments yet!

Post a comment (Optional)
  • Allowed markup: <a> <i> <b> <em> <u> <s> <strong> <code> <pre> <p>
  • All other tags will be stripped, unless they are in a <pre> (use this for blocks of code)
  • External links will have the rel="nofollow" attribute applied