How the Supreme Court Could Now End the Climate Wars

Many climate skeptics were hopeful that the election of Donald Trump would end the climate wars in the US on favorable terms. Many of us assumed that this would be done by persuading EPA to overturn the greenhouse gas Endangerment Finding (EF). But so far all that has happened is that a number of Obama EPA climate regulations have been put on hold or started down the road towards repeal. If the Democrats should win the Presidency, all these changes could be undone fairly rapidly.

To start the process of EF reconsideration, a number of petitions have been sent to EPA by skeptic groups requesting that EPA reconsider the EF. Unfortunately, EPA has not announced such a reconsideration. I believe this is still the best overall strategy since if successful it would finish off climate alarmism as an option on a fairly permanent basis if upheld by the Supreme Court, which now appears possible. This is the strongest approach, and is still the preferred approach.

A second approach which should now be a possibility would be for the Court to overturn Massachusetts vs. EPA by finding that EPA does not have authority to regulate greenhouse gases under the Clean Air Act (CAA). Mass. vs. EPA was decided by only one vote at the Court, including the justice that will apparently be replaced by Brett Kavanaugh. With such a ruling, the climate alarmists would have to persuade Congress to change the CAA to explicitly allow EPA to regulate greenhouse gases. This appears unlikely.

The likely confirmation of Brett Kavanaugh tomorrow opens up a third possible approach, however, of getting the Supreme Court to declare the Obama Clean Power Plan (CPP) illegal by exceeding the powers granted by Congress to EPA under the CAA. By ruling that EPA cannot impose limitations on emissions beyond “the fence” of polluters, the Supreme Court could effectively prevent the legal cornerstone of the Obama EPA climate regulations from becoming a regulation. The action of the Supreme Court in staying the CPP has had a similar effect in the near term but leaves the way open for a reconsideration by a future Democratic administration.

Or what might be best is to try to get the Court to endorse all of these viewpoints, which are arranged in decreasing order of effectiveness. That would effectively prevent even a future possible Democratic administration from reviving the Obama EPA’s attempt to impose major decarbonization as the law of the land through regulations and the courts. The great danger is not that the Trump Administration will support decarbonization but that a new Democratic Administration would do so. But if the views above should be endorsed by the Court, that would be very difficult for many years.

The time has come to nail down the death of climate alarmism in terms of achieving its climate goals through regulations and the courts by using the stronger conservative majority expected tomorrow.