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."
