What Supreme Court vacancy means for Obama’s clean power plan

 (Luke Sharrett/Bloomberg)
(Luke Sharrett/Bloomberg)

Since U.S. Supreme Court Justice Antonin Scalia’s sudden death over the weekend, pundits and politicians have been quick to give their own reading of the political winds in Washington.

And the fate of President Obama’s Clean Power Plan, which would dramatically reduce carbon emissions from the power industry to help address climate change, is no exception.

Last week the Supreme Court voted 5-4 to issue a stay, delaying the Environmental Protection Agency’s scheduled roll out until the plan’s legal merit is decided – in all likelihood before the Supreme Court itself.

Lawyers quickly chimed in Sunday and Monday, offering their take on what the weekend’s events mean for Obama’s climate legacy.

With the death of Scalia, a conservative voice on the court with a history of limiting government regulation, it would seem the chances of the plan being upheld only improves, as laid out in a piece Sunday by Jack Lienke, a senior attorney with the Institute for Policy Integrity at the NYU School of Law.

Right now the D.C. Circuit Court of Appeals is readying to hear states’ challenge to the plan on an expedited schedule, with a ruling expected in the fall. The conventional wisdom is the three-member court panel will rule favorably for the White House, setting up an appeal to the Supreme Court.

Lienke sees three scenarios on how the legality of the clean power plan will be decided:

  • By an eight-member Supreme Court (were the court split 4-4 the lower court ruling would stand).
  • By a nine-member Supreme Court, with Scalia’s replacement appointed by Obama (likely with at least a 5-4 decision upholding the plan).
  • By a nine-member Supreme Court, with Scalia’s replacement appointed by the winner of the 2016 election (a toss-up).

Which of these paths the court ends up on will be determined by timing, namely when the DC court rules on the plan and when a replacement is named (no chance before January if you take Sen. Majority Leader Mitch McConnell, R-Kentucky, at his word).

But should a replacement wait until 2017, Lienke sees this as of no loss to Obama – even were a Republican, all of whom oppose the clean power plan, to win the White House.

“The EPA would be no worse off than it was in the immediate aftermath of the stay. The court would once again be made up of five conservatives and four liberals, and EPA’s best bet would once again be to convince [Justice Anthony] Kennedy or [Chief Justice John]Roberts to break ranks,” Lienke wrote.

Right now, should the DC circuit court uphold the clean power plan, the Supreme Court is expected to hear the case next year.

But a prolonged fight over the appointment could delay that scenario. Speaking to The Atlantic, Richard Lazarus, an environmental-law professor at Harvard University, said the Supreme Court might opt to delay hearing arguments on the case until Scalia’s replacement is named.

“The earliest the Supreme Court could possibly hear it for oral argument would likely be next February or March, and it could possibly not be until the following October depending on how long the [D.C. circuit] decision takes,” he told the magazine.

So what do odds-makers make of these developments.

While Las Vegas has been slow to set the over-under on the clean power plan, Brian H. Potts, an environmental attorney in Wisconsin who writes for Politico among other news outlets, jumped on Twitter Sunday to set the odds.

“Yesterday I put the chances of the #CleanPowerPlan surviving judicial review at < 10%. With #Scalia’s death, I now say it’s > 75%,” he wrote.