Energy

Here’s What Scalia’s Death Means For Obama’s Global Warming Agenda

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Michael Bastasch Energy Editor
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The tragic death of Supreme Court Justice Antonin Scalia already has pundits guessing how this will affect pending court decisions, including a case that could determine the fate of President Barack Obama’s global warming agenda.

Just before Scalia was found dead at a Texas ranch over the weekend, the conservative justice joined the majority in issuing a stay on the Environmental Protection Agency’s (EPA) so-called Clean Power Plan — the Obama administration’s key global warming rule.

But Scalia’s death could completely undermine the Supreme Court’s ability to strike down the CPP, meaning decisions by federal judges in lower courts could end up deciding the fate of Obama’s global warming push — at least in the near term.

Justices reversed the decision of a federal appeals court to not halt the rule’s implementation, the stay has been seen as a huge blow to Obama’s global warming ambitions. It’s not just a major EPA regulation that could be derailed, supporters argue, but the United Nations climate deal as well.

The coalition of states and business group challenging the EPA’s rule, however, hailed the ruling, and argued it signaled the court would likely strike down the agency’s power plant regulation. But that was before Scalia died.

“An unquantifiable huge loss for our country,” Paul Seby, an attorney at Greenberg Traurig who’s representing North Dakota against the EPA’s power plant rule, told The Daily Caller News Foundation on the news of Scalia’s death.

“Without a ninth justice, they will just vote four to four which leaves the lower court decision in place,” Seby said. “This makes the D.C. circuit court cases on the CPP very important.”

Scalia was the fifth vote the conservative bloc of the court needed to finally strike down the Clean Power Plan, but without him (or any replacement) the court will likely be deadlocked in a four to four vote — meaning their decision sets no precedent, and the lower court ruling stands.

Indeed, without Scalia’s vote last week, the court would not have overturned the D.C. Court of Appeals’ decision not to issue a stay on the CPP, meaning states would have had to submit plans to the EPA on how they would cut carbon dioxide emissions from power plants.

Obama wants leading the world to sign a major climate deal a hallmark of his presidency, but to do that the president needed to promise the world he could get China to pledge to fight global warming.

Obama and Chinese leadership announced such a deal in 2014, but to get China to promise to peak its emissions by 2030, the president promised the U.S. would cut CO2 emissions 26 to 28 percent by 2025.

But Obama’s emissions pledge is not feasible if the CPP is struck down by the courts.

“No less than the viability of the historic climate change agreement reached in Paris may well be in peril,” Richard Lazarus, a Harvard University law professor, told The New York Times. “And without Justice Scalia’s vote, that stay would have been denied.”

The CPP case now heads back to the D.C.Court of Appeals where oral arguments will be heard later this year. No matter how the lower court rules, whoever loses will likely appeal to the Supreme Court for a final decision.

If the Senate lives up to its promise to block any judicial nominee put forward by Obama, then the CPP’s fate won’t likely be put to rest once and for all until the next president is elected.

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