Tuesday, February 09, 2016

Yuck. Supreme Court puts hold on Clean Power, not a good sign for the future legal argument

This afternoon the US Supreme Court on a 5-4 vote issued a stay of the application of the Clean Power Plan to emitters (one example of the stays is here). They contradicted a lower court decision not to issue a stay pending a final legal ruling, so now the requirements are blocked for a period of months or more. The lower court has to issue its ruling, and then the inevitable appeal will be made by the losing party, and the Supreme Court will almost-inevitably accept the appeal and go through its own process. It won't end before the next President takes office.

That's obviously bad news for efforts to fight climate change, delaying initial requirements for taking place. The real question though is what does it tell us about the likely final outcome at the Supreme Court. Stays are generally issued based on four criteria:

(1) the likelihood that the party seeking the stay will prevail on the merits of the appeal; (2) the likelihood that the moving party will be irreparably harmed absent a stay; (3) the prospect that others will be harmed if the court grants the stay; and (4) the public interest in granting the stay. 

It's that first criterion that can set back global efforts on climate change. Courts do a balancing of the criteria, so if the Supreme Court majority weighed the other three strongly against the EPA, then they may be only somewhat doubtful of the Plan's legality. On the other hand, EPA argued that the early stages of the Plan place few restrictions on emitters (the emitters disagreed, saying they have to plan for outcomes many years in advance).

This is a situation where the way you argue at one stage of a case may not necessarily help you later. The winning side hopes the Court ignored their own arguments when it came to potential harm and listened to their arguments on the merits, and the losing side hopes the reverse is true.

It's still very unfortunate. If the Clean Power Plan gets thrown out, then a Democratic Party president will seek some regulation that can partially replace the Plan. A Republican president will doubtless seek to do absolutely nothing, and then face lawsuits by environmental groups and by some states for failure to apply the Clean Air Act. Those lawsuits will take a number of years to move forward, a loss of time that we can't afford.

UPDATE:  some more bad news, from the NY Times:  "The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review by a federal appeals court." That makes it even more likely that the majority is ready to shoot the law down - they'd otherwise be hesitant to take an unprecedented step.

One consolation is that the constitutional arguments against the law are so silly that even this conservative Court is unlikely to adopt them. It's the statutory interpretation arguments that are more dangerous, and they're most likely to limit the Plan's application, not kill it entirely.

Harvard law professor Larry Tribe, known as a liberal in some circles, makes the invalid constitutional arguments, and it's not the first time he's sought to take down environmental protections. I don't see how his legal philosophy could possibly be appropriate for a judicial appointment by a Democratic president.


bjchip said...

Time for us to choose menu item 1 from the Libertarian's preferred means of dealing with crimes against us, which is to sue.

Civil suits. Class action suits. The children in whose name the suits are brought, bring the science and predictions into the courtroom, and like big Tobacco, the damages get paid out eventually but the damage to the companies involved starts immediately.

Wanna bet that the denial industry can't be bankrupted if it has to prove that it isn't doing harm?

Time to make this happen. This is the USA. This is why we have all those lawyers! :-)


BBD said...

Apparently, this is a reflection of a political split in the SC: conservative justices vs liberal justices. Politics trumping the law at the highest level. Extremely worrying.

Howard said...

What the (narrowist majority) court is saying is that for this instance, the constitutionality does not trump (that word!) fiat. The court is telling us we need legislative votes and executive approval for this issue, unlike gay marriage.

I really appreciated your nuanced view of the PP "investigative reporters" issue. In my mind, the same logic applies here. By allowing a fiat move that is "pro-environment" to save the planet, that sets a dangerous prescient for some other fiat action taken in an "emergency."

Grid-Lock is a feature, not a bug.

BBD said...

Grid-Lock is a feature, not a bug.

It's a disaster for humanity.

cRR Kampen said...

Expect, please, a corporate-ruled govt to commence a crackdown on blogs like this in years to come.

Howard said...

BBD: Is it your job to sell the CAGW meme one blog post at a time?

cRR Kampen said...

Out with 'Howard'. Just another climate revisionist.

Rattus Norvegicus said...

The fickle finger of "Justice" Kennedy seems to weigh heavily on the scales of justice here.

BBD said...


BBD: Is it your job to sell the CAGW meme one blog post at a time?

No more than it is yours to peddle denialism one post at a time.

KAP said...

The supreme irony here is that the CCP regs were promulgated as a result of a lawsuit that EPA lost, and hence CO2 regulation is now required by this very same Supreme Court. One really has to wonder why the Supremes seem to think that the court can write the needed regs better than the experts.

But the upside is, if the Supremes don't like the way EPA did things, the most likely reason would be that it's too flexible (and too non-science-based) by allowing states to skate through with rate-based (rather than mass-based) requirements. So if everyone ends up on a mass-basis after another USSC go-round, the climate might be a net winner, even if it takes way too long to get there.

Dano said...

Corporations run this country. America is no longer a democracy, and this is more proof.



Brian said...

KAP, I hope you're right, but most commentary I've seen focuses on applying "outside the fence" savings to reduce emissions from fossil fuel plants, namely energy efficiency, renewables, and low-carbon sources. It's that stuff that's mostly at threat, and I think that's what does most of the emission reduction.