The Supreme Court’s decision to block President Obama’s climate change plan sent shockwaves through the legal community, environmental activists and even the industries that oppose these environmental regulations.
The order was surprising not just because it was a rebuke to a major priority of Obama’s administration. It also was at odds the Supreme Court’s usual practice in choosing when to halt a major regulation from moving forward. All four liberal justices expressed their disagreement with injunction.
“It’s surprising because the Supreme Court very rarely grants stays at this stage litigation,” Eric Posner, a professor at the University of Chicago Law School, told TPM. “It’s just not done very much.”
Adam Winkler, a law professor at UCLA law school, agreed that the Supreme Court’s move was unusual, but said what made it notable was that it suggests five justices think the Obama plan will ultimately be declared to be unlawful. “It’s not so much that it’s a surprise that there is an injunction,” Winkler said in an interview with TPM. “The surprise comes from the signal that it sends.”
The impact of the decision on climate policy generally cannot be overstated. It is a blow to long-term efforts to rein in carbon emissions. The New York Times reported Wednesday that the court’s decision also jeopardizes the tenuous international consensus on climate change reached in the Paris accords in December.
But the eagerness of the court to intervene in the implementation of the Clean Power Plan also plays into a larger narrative of a conservative Supreme Court preparing to wage war over how Obama has used his executive power. Coupled with how the Supreme Court has framed a blockbuster immigration case heading its way, the stage is set for the court to engage in the question of whether Obama’s executive powers need to be reined in.
In the climate case, 29 states are suing the Obama administration over regulations geared at curbing carbon emissions in favor of green energy. They argue that the administration exceeded its powers under the Clean Air Act.
The Supreme Court’s decision to halt Obama’s clean power plan — which it issued Tuesday evening, as the results of the New Hampshire presidential primary began to pour in — came after a panel of three judges on the appeals court rejected the challengers’ request that the regulations be blocked while they hear the case. Typically, the Supreme Court will only intervene the way it did Tuesday night after an appeals court has handed down a full ruling on the case.
Both the White House and environmental groups supporting the administration were caught off guard with the decision, and even Jeff Holmstead, the lawyer representing the coal plants challenging the regulations, told Reuters, “To say it’s unusual is a bit of an understatement.”
Furthermore, the move was notable because the D.C. Circuit Court of Appeals had already fast-tracked the case. It is scheduled to hear oral arguments on the full case in June.
“It’s not like the D.C. Circuit had said, ‘And we’ll get to this in the next several years,’ it said, ‘We’ve scheduled this for expedited briefing and we’re hear oral arguments in June,’” said Richard Lazarus, an environmental law professor at Harvard Law School. The challengers could have asked the Supreme Court for an injunction if the appeals court ruled against them then.
The temporary injunction blocking Obama’s plan, Lazerus pointed out, also shifted the dynamics of the pacing of the case, since the injunction will essentially only terminate once the Supreme Court acts on the case. With the regulations blocked, EPA is incentivized to rush the case through the legal process, while states have more leverage in dictating the pacing to their aims.
The court only shows its full hand in the meticulously-argued opinions it issues after hearing a case, so one should be careful not overanalyze a single procedural action. But Tuesday’s move also recalled the unexpected request by the court last month that the lawyers arguing the challenge to President Obama’s immigration executive to included in their briefs a discussion of the Constitution Take Care Clause, which says the president “shall take Care that the Laws be faithfully executed.” The judicial branch has largely stayed away from weighing in on what that clause means.
“The court hasn’t spent much time interpreting the Take Care clause,” Winkler said. “So to add it does suggest a new interest in executive power.”
Not surprisingly, conservatives have welcomed signs that the Supreme Court looks ready to take on Obama’s executive powers.
“There is a kind of emerging view among people who think of themselves as conservatives — lawyers and some academics and so forth — that executive power which at one time conservatives thought was good, is maybe not so good,” said Posner. “This backlash is closely tied to Obama.”
It is widely expected that the case will end up at the Supreme Court, but depending on how the case unfolds, it’s likely the high court will not issue a final ruling on the regulations until after Obama has left office. What the court ends up saying about executive power will have implications for the next president, no matter his or her party.
“I don’t know whether the Republican Supreme Court justices are thinking about this consciously, but I can see that the conservative and Republican lawyers — including, as a group, the Supreme Court justices — are rethinking executive powers and kind of want to have a showdown about it,” Posner said. “It looks like that’s going to take place in these two cases.”