Four Democratic Party U.S. senators on Tuesday called on their Republican colleagues to allow action to fill the Supreme Court vacancy left by the death of Justice Antonin Scalia in February. The matter is particularly important as the high court will almost certainly decide the fate of the Obama administration’s Clean Power Plan, one lawmaker said.
“This Supreme Court nomination process has incredibly disappointing,” Sen. Martin Heinrich (D-N.M.) said during a press conference outside the Supreme Court building. “We have seen our colleagues refuse to do their jobs, in fact, refuse their constitutional duties under the advice and consent clause of the Constitution.”
Heinrich was joined by Sens. Brian Schatz (Hawaii), Barbara Boxer (Calif.), and Ed Markey (Mass.), along with senior representatives from several environmental organizations.
The legal challenge to the Clean Power Plan, an Environmental Protection Agency rule setting specific carbon emissions reduction targets for states, “is likely to land in the lap of the Supreme Court, possibly an eight-member court that could be hamstrung by a 4-4 decision,” Heinrich said. A tie, which would sustain the anticipated ruling from the U.S. Court of Appeals for the D.C. Circuit, “will create enormous uncertainty in the energy sector, right when we need to define the path to a cleaner future,” he added.
President Barack Obama in March nominated Merrick Garland, chief judge for the D.C. Circuit appeals court, to replace Scalia. If approved by the GOP-led Senate, Garland would tip the court toward a majority of justices appointed by Democratic Party presidents. Republicans in the Senate, though, have said they will not consider the appointment during the final months of Obama’s presidency, arguing that the American people must have a voice in the process by electing the next president who will select the next justice.
That remains Senate Majority Leader Mitch McConnell’s (R-Ky.) position, spokesman David Popp said Tuesday by email. Regarding the Clean Power Plan, Popp said he could not hypothesize how the justices could rule in this case.
Days before Scalia’s death, the Supreme Court suspended implementation of the rule until the legal challenge is resolved.
The D.C. Circuit Appeals Court is scheduled on June 2 to hear oral arguments in the consolidated lawsuit against the rule. On one side are more than 150 states, utilities, fossil fuel companies, and others; on the other, the EPA and allied environmental groups.
The “ugly political math” suggests a ruling in favor of the Clean Power Plan by the federal appeals court, one expert said Tuesday.
The three-judge panel that will consider the lawsuit against the rule consists of two Democratic appointees, Judith Rogers and Sri Srinivasan, and Republican appointee Karen LeCraft Henderson.
“If you want to take the ugly political math … you can make the easy categorical statement that EPA’s going to win 2-1,” said Christi Tezak, managing director for research at ClearView Energy Partners. “That will send a message to the industry and states, whether they are enthusiastic about that outcome or not. Certainly states are divided. And there will be an indication, that at least at the first level of judicial review, that EPA crossed the threshold,” she added during an event at the Center for Strategic and International Studies.
The D.C. court has put the case on an accelerated schedule, meaning it could rule around Labor Day rather than sometime next winter, Tezak said. It will then be up to the Supreme Court to decide whether to review the lawsuit following the inevitable appeal.
Agreement by only four justices is needed for the high court to take up the matter, meaning that is likely even with the current eight-member panel, Tezak said. If that happens, a decision should not be expected before the end of the court session, in June 2018. However, if the justices decide against reviewing the case, and a theoretically favorable lower-court ruling stands, the rule could go into effect by next year.
The Environmental Protection Agency gave states until 2022 to implement their final emissions reductions plans. Assuming the Clean Power Plan survives, a Democratic Party successor to Obama could rearrange some of the interim schedule milestones but hold to the final deadline, Tezak said. While some states are continuing their preparations for Clean Power Plan implementation, EPA Administrator Gina McCarthy said last week the agency has advised state governments not to submit their preliminary plans in September, as initially scheduled.
The rule’s future under a GOP president would be murkier. Sen. Ted Cruz (Texas), a vehement critic of the Clean Power Plan, might delay implementation, or offer a slower or more flexible implementation policy for states, she said.
“If the nominee is Donald Trump, and he were to win the presidency, we can also sit here in two years and roll dice and figure out where we’re going to be, because he’s been a little hard to divine exactly what he would do on something so very specific,” Tezak said. “The point is you would have a bit of variation, but you would have a direction toward a lower carbon intensity.
