The death of Associate Justice Antonin Scalia complicates matters around the Clean Power Plan

Associate Justice Antonin Scalia, Clean Power Plan, Supreme Court

Associate Justice Antonin Scalia

The passing of Supreme Court Associate Justice Antonin Scalia last weekend leaves open a seat on the country’s highest court, and it leaves open the door to a great deal of uncertainty with regards to the EPA’s proposed Clean Power Plan.

The Supreme Court took unprecedented action prior to Scalia’s sudden passing by staying the implementation of the Clean Power Plan until the court had time to make a decision. In a 5-4 vote, split along ideological lines, the conservative justices voted to halt the process of EPA regulations before they could take effect. This move was thought to be the precursor to the eventual demise of the proposed environmental rules, with a majority of the justices openly opposed to the EPA’s plans.

The picture has changed radically with the death of Scalia, however. The court is now split evenly along ideological lines, and the legislative and executive branches are gearing up for a major political battle over Scalia’s successor in the Supreme Court. With so much on the line, many are wondering what might happen next with the Clean Power Plan.

The stay on the Clean Power Plan remains, but a court decision is less certain

Now that the Supreme Court no longer has a clear majority on either side of the issue, it remains unclear how the nation’s highest court may rule on the Clean Power Plan, but the stay will remain in effect, regardless.

“There is currently no reason to assume the court will revisit the stay order,” Richard Lazarus, an environmental-law professor at Harvard University and a veteran of oral arguments at the Supreme Court, told The Atlantic. “It is final as voted on by the full Court at the time and is not subject to revisiting any more than any other ruling by the Court before the justice’s passing.”

The ultimate fate of the Clean Power Plan depends largely on the ensuing battle over Scalia’s replacement though.

“The Senate Republicans have already made it clear that they will not confirm anyone President Obama nominates. So it could fall to the next President to name the next justice.  And that makes even higher the stakes in the next presidential election,” said Michael Gerrard, a law professor at Columbia University.

“If no Obama appointee is confirmed, and if Hillary Clinton or Bernie Sanders is the next president, the next justice will presumably join the liberal wing of the court, and there is a good chance that he or she would vote to uphold the Clean Power Plan,” he said. “That of course assumes that nominee gets confirmed before the case is decided; this could well be a massive and protracted confirmation battle, given the high stakes for so many areas of law.”

Conversely, if a Republican candidate is elected president, he or she will most likely appoint a more conservative justice, essentially sealing the fate of the Clean Power Plan.

There is also a possibility that the case could be decided before the appointment of a ninth justice. If the Supreme Court is split 4-4 on a decision, the D.C. circuit’s ruling would stand. The D.C. Circuit Court of Appeals is set to hear the case this summer, with a further appeal to the Supreme Court expected following the appellate court’s decision.

Already, Michigan and Wisconsin have abandoned efforts to comply with the new rule following the Supreme Court’s decision to stay the Clean Power Plan’s implementation, but with so much on the line, many states may consider how to implement the plan depending on how political winds blow in the presidential elections. Even if the rule itself does not stand, many utilities will likely need to consider the possibility of the Clean Power Plan coming into force in future cost-benefit analyses.

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