As the US was transfixed on the primaries in New Hampshire this week, a surprise ruling by the Supreme Court threw the main part of President Barack Obama’s climate policy into disarray, and could delay international implementation of the Paris climate agreement.
The Supreme Court voted 5-4, broadly along ideological lines, for a ‘stay’ on the White House’s Clean Power Plan (CPP), which aims to phase out many coal-fired power plants while giving individual states several choices on how carbon caps imposed by the Environmental Protection Agency can be met.
The five Justices did not give specific reasons for their decision, but they appear to have backed the view that the overall plan amounted to a major intrusion into states’ rights as sovereign powers over industry inside their borders.
Legal experts said the Supreme Court had never before granted a request to halt a regulation before its review by a federal appeals court.
“The decision is very surprising and extraordinary. It stops momentum and throws a wrench into the international climate process,” said Jody Freeman, an environmental law expert at Havard University, in a tweet.
Focussed around a 'signing day' planned for April in New York, the UN wants countries this year to ratify the Paris Agreement and put into action national plans for carbon cuts.
But if big emitting countries such as China and India doubt that the US won’t be able to deliver pledged carbon cuts, they may decide to slow or reject implementation of their own commitments, experts from these countries told the New York Times.
An appeal against the Supreme Court’s decision is expected to last until the end of this year or even into 2017, by which time a Republican may be in the White House and kill the CPP.
A ‘stay’ is a court order that puts a temporary stop on a judicial proceeding.
In this case it freezes the EPA's obligations on states to prepare detailed plans on how they will cut carbon, commitments that could have prompted the closure of coal-fired power plants well before the CPP was scheduled to take effect in 2022.
The US has pledged to cut its emissions 26%-28% below 2005 levels by 2025, much of which would come from a phasing out of coal and a shift to cleaner-burning gas and low carbon energy.
The CPP aims to deliver cuts in nationwide emissions cuts from power generation of 32% from 2005 levels by 2030. States can meet targets through measures including trading electricity generated from wind, hydro or solar, greater use of energy efficiency measures, and a cap-and-trade market in carbon emissions.
Under the Paris Agreement, countries are obliged to come back to the table every five years, report on what they are doing to cut greenhouse gas emissions, and outline how they might scale up future action.
If the US can’t get off the starting blocks, there is a danger that the momentum from the Paris agreement could be severely disrupted.
While the EPA and Department of Justice (DoJ) downplayed the significance of the Supreme Court’s ruling, experts on US environmental law said it is now highly uncertain that the CPP can survive in its current form.
Position unlikely to change
“This isn’t just a preliminary injunction; it’s a preliminary injunction on steroids. First, everyone seems to acknowledge that it’s unprecedented for the Supreme Court to stay a rule pending judicial review. Second, the standards in DoJ’s own brief make pretty clear that a stay will only [be] issue[d] if the Court is pretty convinced on the merits,” said US environmental lawyer Seth Jaffe on the Law and Environment blog.
If the Supreme Court decision is not reversed, then the White House won't have a Plan B to hand that cuts emissions from coal-fired power.
'War on Coal'
Congress, which is dominated by Republicans and some coal-friendly Democrats, over the past decade has blocked legislative efforts to curb carbon emissions.
The Supreme Court’s ruling is clearly a major victory for the 27 states that oppose the CPP, the resources industry, and their political sponsors on Capitol Hill who vowed to fight what they see as President Obama’s ‘War on Coal’.
But the battle isn't over yet, and many states, such as California and New York, will push on with climate-friendly policies regardless, said Bob Perciasepe with the Center for Climate and Energy Solutions, a climate consultancy.
He said on the company’s website: “The country has made substantial progress reducing emissions and ramping up clean energy technologies. Much of that progress has come from business, state and city leadership and initiative. There’s no reason to halt progress and innovation as we wait for these legal challenges to work through the courts.”