Among the major cases whose fate might have changed with the death Supreme Court Justice Antonin Scalia is one that’s being closely followed by West Virginia’s coal industry and its allies: challenges by coalfield politicians and mining companies of the Obama administration’s Clean Power Plan.
Just last week, Scalia was among the justices who voted 5-4 in a surprising move to temporarily block the U.S. Environmental Protection Agency’s rule to reduce greenhouse gas emissions from power plants. Scalia’s death is being called a blow to those who have been fighting the EPA rule, but experts also caution that the ultimate fate of any U.S. plan to fight climate change still will be decided by this year’s presidential election.
“I think the odds of the plan’s survival have increased significantly,” said Michael Gerrard, a Columbia Law School professor and director of the Sabin Center for Climate Change Law. “But even before the stay and even before Justice Scalia’s death, it was still mostly a matter of who the next president was going to be. This makes it more so.”
The EPA rule gives states the freedom to make their own plans to meet carbon dioxide emissions reductions that scientists say are urgently needed to avoid the most serious impacts from climate change. The United Nations Intergovernmental Panel on Climate Change, for example, has said the warming of the planet is “unequivocal,” citing evidence that includes temperature measurements, melting glaciers, declining sea ice and increased concentrations of greenhouse gases.
Industry groups and 27 states — including West Virginia Attorney General Patrick Morrisey — are challenging the EPA rule. Earlier, the U.S. Court of Appeals for the District of Columbia had refused to block the rule from taking effect while a three-judge panel from that court heard the case. But on Feb. 9, the Supreme Court granted a stay, until the appeals court decides the case and — assuming an appeal of that decision — the Supreme Court either refuses to consider the matter or issues a final decision on an appeal.
An argument before the D.C. Circuit is scheduled for early June. A decision could come by this fall, with an appeal to the Supreme Court, by whichever side loses, by sometime in 2017.
James Van Nostrand, director of the Center for Energy and Sustainable Development at the West Virginia University College of Law, said the appeals court has been considered much more likely to uphold the EPA rule than the Supreme Court, especially if Scalia were taking part in the case.
If Senate Republicans follow through on their threat to refuse to confirm anyone nominated by President Barrack Obama to replace Scalia, that would leave the high court with a 4-4 tie ruling on an appeal of the EPA rules. Under that scenario, an appeals circuit court ruling in favor of the EPA would be left to stand, “so Scalia’s passing probably improves the prospects for upholding the Clean Power Plan,” Van Nostrand said.
Gerrard noted that one interesting twist to the situation is that one judge being mentioned as a possible Obama pick for Scalia’s seat on the Supreme Court is Srikanth Srinivasan, a D.C. Circuit judge who is on the panel considering the industry appeal of the EPA rule to that court. The timing of any Obama nomination — should Srinivasan get that nomination — could affect his ability to take part in the case, Gerrard said.
Pat McGinley, longtime environmental law professor at WVU, said any Obama nominee to the Supreme Court probably would be more likely to rule with the EPA. Any of the Republican candidates for president probably would nominate a judge less likely to side with the agency — although it’s not clear if a GOP president would have time to nominate someone and get them confirmed before the Clean Power Plan case is heard, experts said.
“It’s fair to say that Justice Scalia’s death has upended coal industry and state challengers’ predictions that the Supreme Court would likely throw out the CPP rule,” McGinley said. “The upcoming election of a new president takes on even greater significance, as philosophical — some might say political — control of the Supreme Court hangs in the balance.”
Reach Ken Ward Jr. at email@example.com, 304-348-1702 or follow @kenwardjr on Twitter.