The death of Antonin Scalia may have spared the historic agreement from a premature demise, but its constitutional underpinnings are still in jeopardy.
FEB 15, 2016
In December, nearly every country on the planet came together in Paris for a historic deal to cut carbon emissions and beat back the rising tide of climate change. Now, the Supreme Court threatens to tear it all down.
Last week, the Supreme Court barred the Obama administration from implementing any part of its Clean Power Plan, the core of the United States' carbon emissions pledge that was the centerpiece of the Paris Agreement, until lower courts can determine whether the Environmental Protection Agency actually has the legal authority to follow through on the administration's commitment in Paris. In their plea to the Court for a temporary hold, nearly 30 states argued that the slate of regulations in the administration's carbon emissions plan would be an unconstitutional abrogation of state sovereignty; the "EPA would no longer be an environmental regulator but rather the nation's central planning authority," as NBC News reports. The stay, issued by the court, indicated that a majority of justices would likely strike down Obama's plan.
But with the death of Supreme Court Justice Antonin Scalia on Saturday, the Clean Power Plan has been spared its doomed fate. As Jonathan Chait notes, Scalia's absence reduces the court to a veritable four-to-four split, meaning the conflict over the Paris Agreement's implementation at home will be decided by a Democrat-heavy D.C. Circuit panel, which will likely uphold the new EPA regulations without the risk of the court striking it down. "Modern conservative legal doctrine has moved toward a form of aggressive judicial activism, devising—or, more precisely, resurrecting—theories that allow the Court to strike down vast swaths of laws conservatives find objectionable," Chait writes. "Activist Courts require a majority. That is now gone."