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MIT Technology Review

Scalia’s Death Boosts Chances for Obama’s Clean Power Plan

The president’s plan for reducing carbon emissions has a easier path to implementation, but the future of the U.S. power industry is likely to remain in limbo for some time.

February 16, 2016

The death of Supreme Court justice Antonin Scalia on February 13 triggered a political earthquake whose aftershocks will be felt across most spheres of American life—none more so than the struggle to limit global climate change.

Days before his passing, Scalia joined a five-judge majority in temporarily halting the implementation of the Clean Power Plan, the Obama administration’s program to accelerate the shift away from fossil-fuel-based power plants. The unprecedented ruling was considered a likely death knell for the plan, but with eight justices now remaining and an extended political fight brewing over Scalia’s successor, most commentators agree that, as Climate Central’s John Upton wrote, “in dying, Scalia may have done more to support global climate action than most people will do in their lifetimes.”

Briefly, that’s because there are four possible outcomes:

1. President Obama successfully nominates and wins Senate approval for Scalia’s successor, tilting the ideological balance on the Court to five-to-four, liberals over conservatives, and all but guaranteeing that the Clean Power Plan will eventually be upheld.

2. No successor is named by the time the plan comes before the Supreme Court again; the federal district court in Washington, D.C., upholds the plan, again, as it did prior to the high court granting the current stay, meaning that a four-to-four deadlock would leave the lower court’s ruling in place (it’s possible, of course, that the appeals court would nullify the rule, but that’s highly unlikely given the D.C. court’s makeup and its previous rulings).

3. A new Democratic president chooses the next justice, leading to the same outcome as #1.

4. A new Republican president appoints the next justice, and the Clean Power Plan is scrapped.

Justice Antonin Scalia during a Congressional hearing in 2010.

Three of those outcomes favor the Clean Power Plan. And “even in the latter scenario,” writes Jack Lienke, a senior attorney at the Institute for Policy Integrity, on Grist, “the EPA would be no worse off than it was in the immediate aftermath of the stay.”

All of which means, as Reuters reported, that Scalia’s “sudden death may have opened a new path to the rule's survival.”

There’s a large caveat, though: the Supreme Court’s ruling last week contained a provision that it remains in effect until “disposition of the applicants’ petition for a writ of certiorari, if such writ is sought.” In English: even if the lower court again upholds the rule, the stay will last until the Supreme Court decides whether to take up the appeal by the opponents. If the high court declines to review the case, the stay terminates. If it takes up the case, the stay remains until the Supreme Court issues a final ruling.

As explained by David Masselli, an attorney who has argued cases before both the D.C. district and the Supreme courts, that process is likely to take two years at least. The Clean Power Plan is not scheduled to take effect until 2020, but many states and big utilities have already started adjusting their power generation portfolios to comply with it.

Even with Scalia’s death, in other words, it’s going to be a while before we get any clarity on the future of the energy sector in the U.S.

(Sources: Climate Central, Grist, Reuters)