This past week has probably been the most consequential one in the long history of the climate change issue. On Tuesday, February 9, the US Supreme Court granted a stay by a 5-4 decision on the EPA power plant greenhouse gas regulations while the legal issues are decided on their merits. This augured well for an unfavorable legal decision on the regulations by the Court when they ultimately considered it and prevented the Obama Administration from imposing its regulations in the meantime. Since they had already tried and failed to pass a legislative approach to reducing CO2 emissions in 2009-2010, an unfavorable decision would leave them with no real options for imposing their climate alarmist policies.
The Obama Administration immediately went into damage control mode, and suddenly claimed that the regulations were not of great importance after all after months of saying that they were. They now claimed that the recently renewed US subsidies for “renewable” electricity would have more impacts on US CO2 emission reductions.
Then on Friday night, February 12, the author of one of the five Supreme Court votes died. This means that the fate of the EPA regulations may well hinge on the much more liberal DC Circuit Court of Appeals until the Supreme Court vacancy is filled. And after it is filled, they will probably depend on who may be confirmed to fill that Supreme Court seat. So an unfavorable Supreme Court ruling on the legal merits of the regulations suddenly became much less likely.
It is easy to play what if games, but it is fairly clear that if the Supreme Court had tried to make the same decision four days later, they would not have had the votes to issue a stay. And if EPA had dragged its feet just four days longer than it did in publishing the regulations in the Federal Register, that is probably just what would have happened.
So climate skeptics had won what appeared likely to be a significant victory, but with only four days to spare. And what happens from here probably now depends on decisions made by the US Senate on filling the vacancy and by the voting public on who will be the next President.
The Obama/EPA Legal Case Is Very Weak
When I read EPA’s draft power plant regulations in mid-2014 I soon concluded that they were on very thin ice legally. I suspected that this was due to the simple fact that the Clean Air Act was never intended to regulate emissions of natural constituents of the air that rapidly disburse in the atmosphere as a whole such as carbon dioxide. So the very weak case was the best that the authors could make. But EPA and the Obama Administration decided to proceed as if they actually had a legal case.
Although I am not a lawyer, it was hard to miss that the regulations attempted to do exactly what the Clean Air Act said they could not do in terms of using Section 111(d) of the Act to reduce CO2 emissions from power plants. EPA’s explanation was based on an alleged drafting error and was less than convincing. And a leading liberal constitutional scholar strongly questioned the basis for the regulations on a broader constitutional basis. So I have been strongly of the view that the regulations are legally invalid. But the issue is not what I think, but what the Supreme Court (and now maybe the DC Circuit) thinks. And on February 9th that became fairly clear—at least until February 12.
What happens next probably depends primarily on the outcome of the November Presidential election, assuming that the Senate refuses to confirm an Obama-selected appointee to the Court in the meantime. I find it alarming that we came so close to forcing states and utilities to waste trillions of dollars on a useless boondoggle benefiting a very few at great expense to the population as a whole before the merits of the strong skeptic legal case could even be heard. The scientific and logical case against the boondoggle is quite convincing in my view, but it appears likely that the legal decision hinges on who is approved for the now vacant Supreme Court seat. I wish the decision depended on the scientific and logical issues and an objective analysis of the law and the Constitution, but this now appears unlikely. It is now tied up with many of the other contentious issues between the two major political parties which center on cases before or soon to be before the Supreme Court.