Backers of Obama carbon rule see window in Supreme Court rebalancing

By Ellen M. Gilmer | 02/16/2016 07:20 AM EST

The death of U.S. Supreme Court Justice Antonin Scalia has sparked a tidal wave of speculation over what a rebalancing of the court and political chaos around Scalia’s replacement means for U.S. EPA’s Clean Power Plan.

The death of U.S. Supreme Court Justice Antonin Scalia has sparked a tidal wave of speculation over what a rebalancing of the court and political chaos around Scalia’s replacement means for U.S. EPA’s Clean Power Plan.

Scalia, 79, was famous for his strict interpretation of the Constitution and aversion to programs aimed at expanding the reach of the executive branch. He stuck with the court’s conservative wing last Tuesday in a 5-4 decision freezing the Obama administration’s landmark climate program while legal challenges move forward in the U.S. Court of Appeals for the District of Columbia Circuit.

Some legal experts saw the decision as ominous, speculating the same majority would ultimately strike down the rule.


Now, without Scalia, the high court is split between the liberal wing — Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan and Sonia Sotomayor — and the conservative wing — Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and perennial swing vote Anthony Kennedy.

"It’s a potential game-changer," Columbia Law School professor Michael Gerrard said. "The odds of the Clean Power Plan ultimately surviving judicial review have gone up significantly."

The Supreme Court’s hold on the climate rule scrambled conventional wisdom about how legal challenges would play out in the early stages. It recharged the well-organized opposition to President Obama’s use of the Clean Air Act to force electric utilities to cut carbon dioxide emissions.

Efforts to fill Scalia’s seat have already sparked a political battle expected to dominate this election year. Obama announced plans to nominate a new justice "in due time," but Senate Republican leaders have signaled their opposition, saying Obama should defer to his successor.

The strategy is considered a gamble. If the Senate successfully blocks a nominee and a Republican wins the presidency, the GOP may get the conservative justice it wants. But if a Democrat takes the White House, the president-elect’s Supreme Court nominee could be a tougher pill to swallow than any moderate liberal Obama is expected to choose. And the fate of many major cases heading to the high court hangs in the balance.

"The CPP will get there eventually," Dorsey & Whitney LLP attorney James Rubin said, "and the question will be: How many justices are there, and who are they?"

Here’s how the potential scenarios play out for the climate rule.

Option 1: A new liberal-leaning justice

A new liberal-leaning justice on the Supreme Court is the most favorable plot for defenders of EPA’s Clean Power Plan, who say a rebalancing of the court could mean new life for the rule after last week’s legal setback.

"There were four strong dissents," Environmental Law & Policy Center Executive Director Howard Learner said. "Clearly Justice Scalia’s unfortunate passing shifts the balance on the court, depending on the next appointment. Had Justice Scalia not voted on the stay motion, it would have been declined in a 4-4 vote."

If the Supreme Court ultimately takes up the case and the justices split on ideological lines, a 5-4 decision would uphold the rule. But those are big ifs, said Bracewell LLP attorney Scott Segal, who is representing energy groups challenging the climate rule.

"I don’t think mere ideology is enough to resolve the issue," he said. "There are statutory, constitutional and practical arguments that are all before the court, and those don’t go away."

If the court does become more liberal, Kennedy remains a crucial wild card. Though the moderate justice joined the conservative wing in voting for a stay of the Clean Power Plan, his vote on the merits of the case is still considered uncertain (EnergyWire, Feb. 11).

He could even wield power over whether the court agrees to take up an appeal at all. Kennedy could view a D.C. Circuit decision upholding the rule and decide he no longer has legal concerns about it. He could then join with the liberal justices to block the conservative wing from taking up the case. Stranger things have happened, experts say, but the Supreme Court will likely want to leave its imprint on the Clean Power Plan no matter who’s on the bench.

"This is such an important case — the Clean Air Act with greenhouse gases — I would have a hard time thinking the Supreme Court wouldn’t take a pass at this one," Rubin said.

Another unknown with many contingencies: the impacts of an appointment of short-listed D.C. Circuit Judge Sri Srinivasan, who is on the appellate panel considering the Clean Power Plan case. If nominated, it’s unclear whether the judge would recuse himself from D.C. Circuit arguments — opening the possibility of a more conservative judge on the panel — or, if confirmed, later recuse himself from Supreme Court consideration of the case.

Option 2: A new conservative-leaning justice

Clean Power Plan opponents have the best prospects if another conservative justice is appointed to the court. This will likely happen if the Senate successfully blocks an Obama appointee and a Republican takes the White House.

In that case, the ideological balance on the Supreme Court remains roughly the same. UCLA School of Law professor Ann Carlson noted, though, that Scalia is a tough act to follow, and a conservative successor may not have the same impact.

"I suspect that Justice Scalia was very forceful in persuading his colleagues to grant the stay," she said. "What happens when you lose Justice Scalia’s influence, even on decisions about whether to grant cert?"

While Scalia was known for scathing dissents in many high-profile cases before the court, he often found himself in the majority in environmental cases, writing several landmark decisions that shaped environmental law (Greenwire, Feb. 15).

Rubin added that it’s not certain a conservative appointee to the court would align ideologically with Scalia.

"Scalia was very unique because he wore his opinions on his sleeve. On the Clean Power Plan, he would have come out punching," he said. "If they have someone just like that, it would be the same as if the court had not changed. But the court could come out different."

Former Justice David Souter, for example, was appointed by President George H.W. Bush but ended up joining ranks with the court’s liberal wing.

Conversely, he noted, a new liberal appointment to the court — likely relatively moderate unless Democrats take the White House and the Senate next year — doesn’t guarantee a predictable vote.

"A liberal appointment of a liberal judge does not always mean a liberal justice on the court," Rubin said.

Option 3: A long vacancy

A third possibility for the Supreme Court is that no new justice is confirmed before the court takes up the Clean Power Plan. If the Senate blocks Obama’s nominee and wrangles over the next president’s nominee, the court could be down one justice well into next year.

Along ideological lines, an eight-justice court is considered favorable for the carbon rule. If the Supreme Court reaches a 4-4 split on appeal, no new precedent is set and the lower court’s decision stands, unless the court decides to have the case reargued when a new justice is appointed. The Clean Power Plan’s advantage in a split decision depends on the D.C. Circuit upholding the rule — which is not guaranteed but generally anticipated.

"The mainstream view among Democratic appointees to the bench is likely to remain one of deference," Carlson said. "With that said, the Clean Power Plan is a pretty unusual regulation. It’s massive, it’s complicated."

An eight-justice court would also put additional attention on Kennedy. If he joined the liberal wing of the court on the merits, the 5-3 vote would be precedential — meaning other courts would have to accept the legal conclusions when facing similar questions.

But Segal, the industry lawyer, warned against viewing an ideological split or a repeat of the stay decision as a foregone conclusion.

"Who even knows if it would be a 4-4 at the Supreme Court," he said. "Some of the justices who opposed a stay might still have legal misgivings about the rule, but just didn’t think it met the test for a stay."

Segal also noted the prospect of the D.C. Circuit affirming a portion of the rule, like EPA’s general authority under the Clean Air Act, and rejecting another, like the agency’s "beyond the fenceline" approach to regulation. In that case, the exact legal question presented to the Supreme Court could change the tide of an ideological breakdown, he said.

"Do they take the middle course, and if they do, how does a divided Supreme Court or a newly impaneled justice view that?" he asked. "It’s not knowable because we don’t know what orientation the rule will be in by the time it hits the Supreme Court."