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Supreme Court Action, Scalia Death Lead to Unknowns

It took fewer than four calendar days for the outlook for American climate change leadership to twice change dramatically. Just how it has changed likely won’t be known for months.

The first “bombshell” action came on February 9, when the U.S. Supreme Court took the highly unusual step of staying the Obama Administration’s Clean Power Plan EPA regulations pending review by the U.S. Court of Appeals for the District of Columbia. Read on for a glance at a few of the terms used to describe that action.

And then, four days later, came the stunning February 13 death of Supreme Court conservative icon Antonin Scalia, who had been in the majority in the five-to-four “stay” action earlier that same week. Few Americans could have missed the deluge of claims and counter-claims Scalia’s death has precipitated.

Where it goes, nobody knows.

A sampling of how some – mostly those wanting more action to address risks they see from a warming climate – have characterized the Court’s February 9 action on the power plant rule, considered the backbone of the administration’s commitments to the Paris Climate Agreement signed in December 2015:

“Extraordinary.” “Surprise.” “A blow.” “Bad news.” “An enormous shadow.” “Serious damage . . . . far from a death knell.” “A wrench in the delicate diplomacy” surrounding the December 2015 Paris climate agreement. “A bump in the road, not a roadblock.” “Deeply disturbing.” “Slam the brakes . . . . sowing doubts internationally.” “Incalculable damage.” “Nakedly partisan, unprecedented type of action.”

The list goes on and on, with those states and their coal and fossil fuel advocates delighted with the Supreme Court action as effusive as many climate advocates were upset.

It was one of those no-details/no-explanation Supreme Court actions that sheds no light on the legal thinking behind it. Yet at the same time, the Supreme Court’s decision sent a very strong signal, at least as of that date, that things might not go well for the regulation once the full Court takes it on for real . . . some unknowable number of months into the future.

The five justices generally comprising the “conservative” majority sent the rule back to the U.S. Court of Appeals for the District of Columbia, the same court that had earlier given it the go-ahead.

A panel of that court had green-lighted the landmark EPA rulemaking, but now the full appeals court will also have a chance to decide its fate, with the process beginning with an expedited hearing scheduled for June 2.

The timetable after that is unclear, but few expect a final judgment, almost certainly again involving an appeal to the Supreme Court, prior to the January 2017 end of the Obama administration.

Coal and fossil-fuel interests and the mostly Republican-governed two-dozen-plus states bringing the challenge against the EPA rules could not have asked for more. Those determined to limit combustion of coal and fossil fuels – and the mostly Democratic-governed states siding with them – tried to make the best of what clearly was, from their standpoint, a major setback.

While the White House and its climate change allies tried to put their best foot forward – the White House spokesperson, for instance, claiming confidence the ruling eventually would be upheld – others appeared perhaps less inclined to lipstick a pig.

“This arbitrary roadblock does incalculable damage and undermines America’s climate leadership,” California Governor Jerry Brown, a leading voice among governors wanting to combat climate change, said February 9 in a statement.

Politico quoted former Obama administration climate adviser Jody Freeman, now a Harvard professor, as saying “There’s no question this undermines U.S. leadership on climate change in the international arena” less than two months after the Paris Climate Agreement was reached in December.

If all that weren’t enough of a wrench in the works of Obama administration climate policy, word came within days of Justice Scalia’s death. The leader of what has become known as “originalism” – interpreting the Constitution by the original words of its framers – Justice Scalia was generally regarded (along with being brilliant, forceful, unbending, eloquent in his written dissents, and a stalwart defender of freedom of speech, in all forms) – as having had no fondness for EPA.

Coming as it did, the death of the Supreme Court’s leading conservative thinker raises doubts anew about the administration’s climate change initiatives, all in the context of a presidential primaries campaign season and a now, at least temporarily, evenly-split Supreme Court.

As they say, one just can’t make this stuff up. As a fictional story about the making, or unmaking, of climate change policy, it would seem too far-fetched to be credible.

But in the context of the reality-TV nature of climate change policy and policy-making in this zany presidential election season, it amounts to just one more bizarre chapter in a book that many feel cannot end soon enough, although no one now can know just how and when it will all end.

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