When it comes to the future of the EPA plan, only two people count: Supreme Court Justice Anthony Kennedy and the next president.
“Nothing else matters,” said David Bookbinder, former senior counsel for Sierra Club and a sought-after expert on environmental law. How the D.C. Circuit Court of Appeals rules on lawsuits from 26 states and scores of others means little, he said Friday.
Kennedy will end up deciding the fate of President Obama’s Clean Power Plan, as a deluge of lawsuits floods an appeals court challenging the far-reaching climate rule, Bookbinder said.
“What [the D.C. Circuit Court of Appeals] says on the merits [of the suits] is meaningless because it’s up to [the] Supreme Court. It’s up to Justice Kennedy,” said Bookbinder at a day-long conference at the Cato Institute libertarian think tank in Washington on the prospects for a climate change deal in December. The Clean Power Plan is the key to the U.S. meeting its obligations under any climate accord.
Many scientists blame greenhouse gas emissions from the burning of fossil fuels, such as oil and coal, for global warming and climate change, which results in more extreme weather, floods and droughts.
Many in Washington agree that the case will make it to the Supreme Court because of its far-reaching nature, placing the Environmental Protection Agency’s authority to regulate carbon dioxide firmly in the crosshairs.
Bookbinder said Kennedy matters the most on the high court because he has been the swing vote in nearly all previous cases involving the EPA, including one last summer on the agency’s expensive mercury rules for utilities.
Bookbinder speculated that there is a scenario where the Supreme Court approves the Clean Power Plan.
“I bet that Kennedy will uphold the rule,” because if the Clean Power Plan doesn’t win, it means the EPA can never regulate carbon dioxide emissions. Kennedy may feel that he doesn’t want to be the one who decides that, Bookbinder said.
It would be a difficult position for Kennedy, he said. On one hand, he stops the EPA from ever taking any steps to regulate carbon emissions. “On the other hand,” he could rule against a regulation that takes away “a lot of authority” from the states and hands it to the EPA. It’s “not a good situation” to be in, he said.
On the other hand, who becomes the next president also matters a lot for the future of the rule, he said.
If Democratic front-runner Hillary Clinton wins the presidency next year, it puts more focus on the high court and Kennedy because she supports the Clean Power Plan and would push it through if the lower court approves it. “If Hillary gets in, then it’s up to Justice Kennedy,” he said. Even if the plan is shot down in the lower court, environmentalists, the EPA and states supporting it would go to the high court seeking a reversal, which Clinton also would support.
The alternative is a Republican president, where court action is less necessary because a GOP White House would repeal the regulations, he said.
