This article looks at possible impacts of the death of Supreme Court Justice Antonin Scalia on the federal Clean Power Plan (CPP) and the Paris climate change agreement, particularly in Montana. Scalia died on Saturday, February 13.

Historic agreement depends on US leadership and commitment
Last December in Paris, representatives of 195 countries, representing more than 95% of global greenhouse gas emissions, reached a landmark climate agreement that will, for the first time, commit nearly every country to lowering planet-warming greenhouse gas emissions to help stave off the most drastic effects of climate change. United States leadership was key to passage, with President Obama committing to significant cuts in carbon emissions.

From a policy perspective, the key to the US commitment was the Administration’s Clean Power Plan (CPP), which will require power plants to make significant reductions in emissions. The CPP’s standards limit the amount of carbon pollution released for every power plant covered by the rule, and they are the same for every plant in every state. The cuts would have their biggest impact on coal power.

Coal power plant in Colstrip, Montana.  Photo: Sierra Club

The viability of the Paris agreement was threatened last week when, in one of the final decisions in which Scalia participated, the Court voted 5-4 to temporarily block the CPP. Scalia voted with the majority.

CPP failure could cause Paris agreement to come apart
If the CPP is permanently blocked, other countries, particularly major polluters such as India and China, might regard this as a failure of leadership on the part of the US and back out of the Paris deal.

“If the U.S. Supreme Court actually declares the coal power plant rules stillborn, the chances of nurturing trust between countries would all but vanish,” said Navroz K. Dubash, a senior fellow at the Center for Policy Research in New Delhi. “This could be the proverbial string which causes Paris to unravel.”

The Supreme Court decision was a response to lawsuits from the energy industry and 29 states, including Montana, to block the new rules. It was not a final blow to the CPP, since the US Court of Appeals for the DC Circuit will hold oral arguments on the plan in June, which means that, even before the Supreme Court decision, neither the industry nor the states would have had to come into compliance for at least two years.

Justice Antonin Scalia

What impact will Scalia’s death have on the CPP?
The DC Court of Appeals is likely to rule in favor of the CPP, which would bring it back to the Supreme Court on appeal.

However, last week’s Supreme Court decision is a source of concern for the Administration, since it signals that five judges had problems with the plan.

The Republican leadership in the Senate, which must approve Obama’s Supreme Court nominee, has vowed not to approve any nominee until a new President is elected. Whether they hold to this pledge or not, the likely result will be favorable to the CPP and the Administration, although a negative result is possible.

• If Scalia’s seat remains vacant and the DC Court of Appeals rules in favor of the CPP, the likely 4-4 Supreme Court vote would leave the DC ruling in effect, and the CPP would go forward.
• If Scalia’s seat remains vacant and the DC Court of Appeals rules against the CPP, the likely 4-4 Supreme Court vote would affirm the DC ruling and the CPP would be canceled.
• If Scalia’s seat is filled, the new justice would probably be the deciding Supreme Court vote, and, if an Obama nominee, would almost certainly vote in favor of the CPP, leaving it in force.

Impact on Montana
In Montana, the CPP has been highly controversial, with opponents claiming the standards will cost thousands of jobs and provoke a financial calamity for the state. These claims have been debunked by credible sources, and, according to the EPA, “Montana has one of the least stringent state goals, compared to other state goals in the final Clean Power Plan.”

Beyond the CCP, the biggest impacts on Montana’s coal plants will be a long-term reduction in global market demand for coal, which is being replaced by natural gas and clean energy.

But the political fallout from last week’s Supreme Court decision was felt immediately. Governor Bullock suspended the work of his appointed advisory panel on CPP implementation immediately after the decision.

The suspension gives CPP opponents in the state a temporary reprieve, but all indications are that CPP will be back with a legal seal of approval.

Related:
EPA Clean Power Plan Fact Sheet
Regulatory Impact Analysis
Impact of the CPP on Montana