Sunday, February 14, 2016

Clearing the Air

The sudden death of ultra-conservative Republican Supreme Court Justice Scalia and the likelihood that the Republican Senate will at least try to maintain this vacancy for a long time is also likely to result in a number of important no-decisions that will fracture federal law, as lower court rulings that conflict with one another will rule over different parts of the country.

But the negative effect of at least one recent Court decision--to postpone federal regulations on carbon pollution under the Clean Air Act--is likely to diminish. Even before today, despite the dire headlines, that decision was probably not going to have a major impact anyway.

While that stay issued last week does delay formal implementation of the regulations, it was likely only a delay.  As Jonathan Chiat noted: "Because the Supreme Court ordered the regulation of carbon in the first place, there’s little doubt that some kind of power plan could be designed that would pass legal muster."  This might require a different approach to the regulations, which would further delay implementation, but not ultimate success--as long as the executive branch wants those regulations.  Which means a Democrat in the White House.

Even a delay could weaken American leadership in the global effort to address the climate crisis that the world formally engaged in Paris 2015.  But as a practical matter, there may be no delay--because US power companies are going forward with their plans to meet the carbon goals.  The Washington Post reported:

"Executives for electricity producers and industry trade associations say they expect little deviation from what was already an industry-wide move from coal-burning to cleaner and cheaper forms of energy to produce electricity. The shift is likely to accelerate further in the near future, industry officials and analysts said, meaning that many of the administration’s carbon-cutting goals may be met regardless of what courts and lawmakers ultimately decide to do."

But now the legal fate of the regulations in the near term is clearer. The Supreme Court's stay on the regulations is to be in effect until the D.C. Circuit Court of Appeals makes its decision on the merits.  Chiat today:

"The stay indicated that a majority of the justices foresee a reasonably high likelihood that they would ultimately strike down Obama’s plan, which could jeopardize the Paris climate agreement and leave greenhouse gasses unchecked. Without Scalia on the Court, the odds of this drop to virtually zero. The challenge is set to be decided by a D.C. Circuit panel composed of a majority of Democratic appointees, which will almost certainly uphold the regulations. If the plan is upheld, it would require a majority of the Court to strike it down. With the Court now tied 4-4, such a ruling now seems nearly impossible."

This is going to be obvious to everyone involved, and further motivate electricity producers to go ahead with changes to limit carbon pollution.  Once that happens, even a Republican in the White House wouldn't be able to do much about it, because after all that investment, power companies aren't going back.

President of the United States
As for the impact on the election of Scalia's death and the Republican's open demand that the Constitution be violated and the President of the United States not appoint a Justice to fill the vacancy, at least one analyst believes it could further the likelihood of a Democrat being elected President in November.  John Cassidy in the New Yorker:

"If the Republicans block the nomination without properly considering it, which also seems likely, a huge political row will ensue, enveloping the Presidential race. (In fact, it has already done that, as the Republican debate proved.) Come summer and fall, the Democratic candidate, be it Hillary Clinton or Bernie Sanders, will be able to go the country and appeal for support in preventing the Republicans from humiliating President Obama and making a mockery of democracy."

So in that case who would win the 2016 election? By bringing to the polls the coalition that elected him twice:  President Obama.

Update: A summary of other views on how Republican "strategy" on the Supreme Court vacancy could hurt them in November and beyond. 

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