Does the Clean Power Plan Still Stand a Chance? Only if the Next President Is a Democrat

Can the US Make Good on its Climate Pledge without the Clean Power Plan?
President Barack Obama addresses the climate summit in Paris on November 30, 2015. The Supreme Court on Tuesday may have dealt a lethal blow to the U.S.'s only hope of making good on its Paris emissions pledges. Kevin Lamarque/Reuters

Just over two months ago, President Barack Obama stood in front of world leaders at the U.N. climate talks in Paris and said the U.S., as the second-largest emitter of greenhouse gases, "not only recognizes our role in creating this problem, we embrace our responsibility to do something about it," backing up what many viewed as robust plans to significantly cut U.S. emissions.

But on Tuesday night, the U.S. Supreme Court dealt a potential death blow to the only means Obama has to make good on those commitments. The court issued a "stay" effectively blocking the Environmental Protection Agency (EPA) from enforcing the Clean Power Plan until a lower court issues its opinion on lawsuits filed against it.

Up to half of the 26 to 28 percent emissions cuts the U.S. promised in Paris need to come from the electricity sector, explains Ann Carlson, a professor of environmental law at the University of California, Los Angeles, and director of the school's Emmett Institute on Climate Change and the Environment. Those reductions—which Obama also promised in a historic agreement with China before the Paris talks—are all but impossible without the ambitious Clean Power Plan, Obama's method for cutting emissions from power plants, Carlson says.

"It's a big part of his legacy, and now it's in question," Carlson says.

As much as half of the American commitment in Paris might no longer be possible, depending on what the Supreme Court—and the voting public—does next. That's because we almost definitely won't know the legal fate of the Clean Power Plan until after America chooses its next president.

The timing of the Supreme Court's stay ensures that no final decision about the plan will come from the courts until after November. And with the GOP uniformly committed to scrapping the Clean Power Plan entirely, its fate will ultimately come down to whether the U.S. elects a Republican or a Democrat in November.

If the U.S. elects a Democratic president: The Clean Power Plan might survive, but only if the D.C. circuit court and the Supreme Court agree it should.

If Bernie Sanders or Hillary Clinton is elected president in November, the Clean Power Plan has a shot to live on, explains Carlson. The D.C. circuit court has agreed to expedite the case and is scheduled to begin hearing oral arguments in June. Typically, it takes several months to a year for the court to issue an opinion after oral arguments, so we're unlikely to know if it will uphold the plan until after November.

In scenario No. 1, or what a Democratic president (and other supporters of the plan) might consider the best-case scenario, the Court of Appeals upholds the Clean Power Plan and the Supreme Court lifts the stay. In this scenario, the plan won't end up thrown off course, Carlson says, because so many delays are already built into the plan: Already, states didn't need to submit their emissions-reduction plans until September 2016, and they have the option to request two-year extensions. "And the really serious commitments wouldn't kick in for another several years," she says.

So in this scenario, the plan might be delayed by a year and a half or so but would ultimately go into effect mostly unscathed.

There's a second, related, scenario that is slightly less advantageous for the Clean Power Plan: The Supreme Court may leave the stay order in effect even if the Court of Appeals upholds the plan, says Carlson. This is not unrealistic, given that five of the nine Supreme Court justices thought a stay was necessary in the first place.

The stay decision already sends a strong message about where the court thinks the case is headed, and it's bad news for the plan. According to the legal standard to grant a stay, the justices must believe that not granting it would leave the party that brought the lawsuit "irreparably injured." In this case, that means the justices decided that forcing the states and the electricity industry to move ahead with the plan as is would "irreparably injure" their rights and financial resources. This suggests that even if the circuit court upholds the plan, it may come down to a fight in the Supreme Court, because the top court may not decide to lift the stay.

Here the results of the 2016 presidential election really begin to matter. And only a Democratic president would continue to defend the plan in the courts by filing an appeal against the stay.

If the U.S. elects a Republican president: The Clean Power Plan will likely perish.

If America elects Ted Cruz, Marco Rubio or Donald Trump, the plan "will almost certainly never go into effect since every Republican candidate has either denied climate change altogether, denied that humans are causing climate change or denounced" the Clean Power Plan, writes Carlson on the environmental law blog for UCLA and the University of California, Berkeley. If the Supreme Court leaves the stay in effect, it's highly unlikely that a Republican president would continue the Obama administration's efforts to defend the plan in the courts. (It's hard to imagine Cruz or Rubio, for example, deciding to appeal the stay.)

Technically, the Clean Power Plan was the Obama's administration response to a series of lawsuits filed by environmental groups against the EPA. The outcome of the lawsuits required the U.S. to create new rules to limit pollution under the Clean Air Act—which means that even if the Supreme Court rules against the Clean Power Plan, the new Republican president's administration will still have to write a new rule to reduce emissions from power plants.

"A Republican president would still in theory at least have to do something, but there's a way to do something very, very weak," Carlson says. (The rules written by Obama's EPA were notably ambitious.)

Over all, the Supreme Court action on Tuesday is not good news for the plan. But the U.S.'s ability to uphold its Paris climate commitments may ultimately come down to the presidential elections in November.