February 18, 2016

BARELY LEGAL | How a Vote Could Change the Climate

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Less than two weeks ago, hope for the long term stability of the recent Paris Climate Agreement was wearing thin. In an unprecedented step, the five conservative justices of the Supreme Court issued a stay on Feb. 9, 2016, preventing the Environmental Protection Agency from implementing President Obama’s Clean Power Plan before the U.S. Court of Appeals for the D.C. Circuit had ruled on the merits of the case challenging the regulation. This unexpected decision from the Court, overriding the decision of the D.C. Circuit to deny a stay, dealt a serious blow to the confidence of the major stakeholders of the Paris Agreement. The Clean Power Plan is a foundational aspect of the United States’ commitment to greenhouse gas emissions reductions under the Paris Agreement and the United Nations Framework Convention on Climate Change, and it was only the United States’ willingness as a major emitter to make significant reductions that brought other countries to the negotiating table in Paris in the first place.

If the United States cannot uphold its commitments under the Paris Agreement, other countries will also begin to treat their commitments as suggestions rather than obligations. Environmental policy experts from within India and China have already voiced concerns that their countries’ governments may interpret the stay as an indication that the Supreme Court will vote against upholding the regulation when the case eventually reaches the Court on appeal. However, the recent death of the conservative Justice Antonin Scalia, one of the five justices to vote to issue the stay, significantly reduces the likelihood of a decision invalidating the Clean Power Plan and may restore other countries’ confidence in the United States’ ability to adhere to its commitments to reduce greenhouse gas emissions.

Because Justice Scalia passed away during an election year, the political stakes regarding who replaces the conservative justice on the Supreme Court are particularly high. Based on Senate Majority Leader Mitch McConnell’s recent statements, along with statements from many Republican presidential candidates, it seems clear that the Republican majority in the Senate is poised to refuse to confirm an Obama nominee through the end of President Obama’s term, regardless of how moderate or experienced that nominee might be.

Since the case has not even been argued yet in the D.C. Circuit, there is still significant time before the full issue might reach the Supreme Court. It is likely that the Court would agree to hear the case on appeal, but even then it would probably not hear arguments on the case until sometime during the first few months of 2017. By that time, a new president will have taken office, so even if the Senate blocks all Obama nominations, they could confirm a new justice nominated by the newly elected president in time for this case to be heard.

The ideological perspective of the person who eventually replaces Justice Scalia on the Court will profoundly impact the Court’s likely voting pattern on a wide range of issues, but few are so grand in scale as the impact on global climate change. The Court’s ultimate decision in the Clean Power Plan case will not just affect the implementation of that regulatory scheme in the United States but has the potential to undermine or reinforce the foundation of the most significant international climate agreement ever reached.

There are a few possibilities for how the nomination process could work out. In the unlikely scenario where the Senate confirms an Obama nomination to the Court, that person will almost certainly fall at least slightly to the left ideologically from Justice Anthony Kennedy, the current middle of the Court. This would shift the Court’s ideological balance to the left, making a 5-4 decision to uphold the Clean Power Plan significantly more likely. If the Senate continues to block nominations to the Court through the beginning of the next president’s term, the Court will likely reach a 4-4 decision, meaning that whatever decision the D.C. Circuit reaches will stand. If the Senate confirms a new justice at the beginning of the next president’s term, then everything hangs on who that president turns out to be. If a Democrat takes the White House, then addressing climate change and appointing a more liberal justice to the Court will take priority. If, however, a Republican takes office, it is likely that a conservative justice will be appointed and will overturn the Clean Power Plan, possibly leading to the collapse of the Paris Agreement and a return to the drawing board on how to address climate change at the international level.

The news is currently full of analyses of how Justice Scalia’s death will impact the future of American jurisprudence. This is just a reminder to consider that a vote for a senator or a president might help determine the next person to join the Supreme Court, and that who that person is will impact much more than what happens within our borders.

Allison Hoppe is a J.D. candidates at Cornell Law School. Responses can be sent to associate-editor@cornellsun.com. Barely Legal appears alternate Fridays this semester.