Earth On Fire: A Supreme vacancy

Amid the intense media attention paid to the shocking death of Supreme Court Justice Antonin Scalia, a legal development of great importance failed to generate much public discussion.

On Feb. 9, just four days before Justice Scalia died, the Supreme Court ruled in a 5-4 decision to temporarily block the implementation of President Barack Obama’s signature environmental initiative, the Clean Power Plan (CPP). The ruling may well determine the viability of international agreements on climate change.

First, some background: in 2007, the Supreme Court ruled in Massachusetts v. Environmental Protection Agency that the federal government had a legal obligation per the Clean Air Act to regulate greenhouse gas (GHG) emissions. Shortly after taking office in 2009, President Obama sought to push through Congress legislation that would have established a national cap on carbon pollution. The effort failed, however, as lawmakers worried about the impact the bill would have on the tepid economic recovery. In the 2010 midterm elections, Republicans, pledging to block any similar efforts, took control of the House of Representatives and have kept it ever since.

Faced with enormous intransigence on Capitol Hill, in 2014, President Obama ordered the Environmental Protection Agency (EPA) to promulgate new regulations that would substantially reduce the electric power sector’s emissions of GHGs. By showing the international community that the United States had begun to take climate change seriously, the directive reinvigorated international efforts on global warming. Analysts argued that the CPP helped catalyze the development of the historic accord reached in Paris last December.

Because Justice Scalia provided one of the five votes ruling to block the CPP’s implementation, the next member of the court will likely determine the directive’s fate. All four justices who joined the court during Democratic administrations opposed the decision; the five appointed by Republican presidents voted to halt the plan.

As climate change remains an intensely partisan issue, it is imperative that voters elect either Senator Bernie Sanders of Vermont or former Secretary of State Hillary Clinton, both Democrats, as the next president. Each candidate has pledged to support the CPP and other domestic initiatives that would mitigate climate change. The leading candidates for the Republican presidential nomination do not share the same view, however.

In January, Senator Ted Cruz of Texas called EPA administrators “zealots who are anti-development. They hate anything that is developing; anything that is creating jobs… We need a president who will take on the EPA.” In an interview with host Chris Wallace on Fox News Sunday last October, Donald Trump asserted: “Environmental Protection [Agency], what they do is a disgrace. Every week they come out with new regulations.”

The GOP will not change its position on climate change any time soon, so the executive branch remains the only way the United States can address this issue. Because a hostile court will eviscerate federal regulations on global warming, we must ensure that the next president we elect will appoint justices sympathetic to the constitutionality of environmental regulations.