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26.02.2016.

The late Supreme Justice Scalia leaves US climate policy on life support

It is said that when Metternich, sometime Austrian Foreign Minister, heard of the death of his French counterpart, Talleyrand, he opined, ‘I wonder what he meant by that?’ The quote passed through my mind when I learned of the death of US Supreme Court Justice Antonin Scalia. A central figure in so many of the landmark decisions taken by the court since appointed by Ronald Reagan in 1986, it was hard to believe that his passing was not part of greater legal commentary.

One of Justice Scalia’s last acts was to derail President Obama’s flagship policy, the Clean Power Plan by which the government intended to reduce emissions by a third within fifteen years of coming into force. By 5 votes to 4 the Court voted to uphold the complaint of 27 US States and various industry bodies and so delay introduction of the Clean Power Plan until all lower court lawsuits against it have been heard.

I was surprised to read the Court’s decision, principally because the day before I was at the US Department of Energy in Washington DC, where all the officials spoke of was the Clean Power Plan and its role in delivering America’s climate change commitments. They were clearly not expecting Antonin Scalia and the US Supreme Court pals to intervene. (You can read the legal arguments here behind the Courts decision here).

Needless to say the remainder of my visit, ostensibly to discuss the role of cap and trade schemes in greenhouse gas emissions reduction, was dominated by the unexpected Supreme Court spanner tossed into the works. The first reaction in many I spoke with, especially those who had cut their teeth on the US Clean Air Act of 1963, was that this was the first time that a federal regulation be overturned by the Supreme Court without having first been challenged in a lower court. The second was that whilst the US could still (just about) meet its climate change commitments, agreed at the UN Climate Conference in Paris, the future was anything but certain.

Representatives of the US Departments of State and of Energy were quick to point out that the Clean Power Plan was just one small part of the Clean Air Act and covers only the power sector (not cars, industry or agriculture). They were equally quick to point out that behind the scenes the US had steadily tightened rules governing methane and NOX emissions and invested record amounts in renewable energy. (Though worth remembering that several of the renewable energy tax incentives will expire in 2020, and without them it is debatable whether the inexorable upward trend in US renewable energy will continue).

However, the Supreme Court decision does risk taking the shine off President Obama’s Climate Change gingerbread, for one simple reason, which quickly dawned the morning after the decision, the issue will not be resolved quickly and certainly not this side of the US Presidential election. This may well matter. Recall that one of the key challenges of the Paris talks was to secure a ‘kinda binding’ agreement that did not require ratification by the Republican-dominated US Congress. The reason, the Congress would be unlikely to ratify, just like it would not ratify the Kyoto Protocol in 1997. Throw into the mix the prospect of a Republican president and you see the problem.

In the meantime neither Hillary Clinton nor Bernie Sanders, the US Presidential Democratic contenders, seem overly keen to welcome the arrival of climate change as an election issue, animating as it does the Republican base more than the Democratic one, and it is no fun fighting on the back foot in a tight race. Indeed to date neither of the Democratic candidates have been particularly vocal on the issue of climate change.

The Clean Power Plan was not meant come into force until 2022, so there could just about be time to sort all this out. The first stage in the process will be a handing down of the decision to the DC District Court for consideration and ruling. Thereafter this ruling will be returned once more to the Supreme Court, likely to be sometime in 2017, because the wheels of US justice turn grindingly slow. And let’s not forget each stage of the legal wrangle will draw the ire of the Republicans.

Let me indulge in a little crystal ball gazing. If Congress remains in the hands of the Republican Party, and the Presidency too falls to the Republicans, and the incoming Republican President nominates a Republican-leaning Supreme Court Justice to replace the late Antonin Scalia the prospects for the Clean Power Plan do not look rosy. Nor one might argue do the US Commitments to the wider questions of climate change.

Setting aside spherical prognostications, a more imminent issue confronts President Obama. He is due to sign the Paris Accord on the 22nd of April. Given that the US’s Intended Nationally Determined Contributions (INDC; now metamorphosed into a NDC) was based upon the Clean Power Act and the Clean Power Plan it remains to be seen how credible will be an American President adding his name to an accord when one of the central tenants of his commitment is currently mired in the courts. That being said no one state-side I spoke with believed that President Obama wouldn’t sign the accord, credible or incredible as that may ultimately appear.

So as I boarded my flight back to Scotland I mulled the vagaries of life. Justice Scalia was in seeming good health when I arrived in the States, and so was the US Clean Power Plan. A week later one was dead and the other on life support. A week is indeed a long time in politics. I have a sneaking suspicion that Justice Scalia would be rather proud of his role in the befuddlement of the Clean Power Plan. Whilst his name will be write large in the annals of the US Supreme Court, he will almost certainly merit a footnote in the history of climate change.

Dr Ian Duncan 

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