Nothing Less Than the Fate of the Planet May Hinge on the Next Supreme Court Justice

By Deirdre Fulton / Common DreamsThis article first ran on Common Dreams.

As Washington, D.C. gears up for a Supreme Court showdown, experts this week are predicting that the person chosen to fill Justice Antonin Scalia’s seat on the high court bench will have a huge impact on the fate of the planet.

Common Dreams previously reported that several high-profile cases hang in the balance in the wake of Scalia’s death. But perhaps none will be as closely watched as the case that pits fossil fuel giants and Republicans against environmentalists and the Obama administration.

“In dying,” science journalist John Upton wrote on Sunday, “Scalia may have done more to support global climate action than most people will do in their lifetimes.”

That’s because, as Upton explained in a separate piece, Scalia’s death “means it is now more likely that key EPA rules that aim to curb climate pollution from the power industry will be upheld.”

And those rules—namely the Clean Power Plan (CPP), which aims to reduce carbon pollution from power plants—are necessary for the United States to deliver on the promises made at the COP21 climate summit in Paris in December. Without the CPP, Upton argued, “the U.S. would be left without a credible plan for fulfilling its pledge to reduce its climate pollution by a little more than a quarter in 2025 compared with 2005 levels.”

One of Scalia’s final acts as a Supreme Court justice was to vote in favor of an unprecedented stay on the CPP until it has been reviewed by the U.S. Court of Appeals for the District of Columbia Circuit, with arguments set for June 2.

The D.C. Circuit is likely to issue a decision on the Clean Power Plan this fall, which would put the rule back in front of the Supreme Court in spring 2017.

“What happens then will depend on whether the court’s now vacant ninth seat has been filled and, if so, by whom,” Jack Lienke, a lawyer with the Institute for Policy Integrity at New York University School of Law, wrote on Tuesday. “But in most of the possible scenarios, the EPA faces considerably better odds than it did with Scalia on the bench.”

If a new justice is confirmed before President Barack Obama leaves office, “it does seem fair to assume that an Obama appointee will be more likely to join with the four liberals to uphold the Clean Power Plan than to vote with the four remaining conservatives to strike it down,” Lienke said.

The shakiest scenario would be if Obama’s successor were to get Scalia’s replacement through the Senate in time to weigh in on the CPP. That would be good news for environmentalists if the next president is a Democrat.

But even if a Republican wins in November and gets a conservative nominee onto the bench, “the EPA would be no worse off than it was in the immediate aftermath of the stay,” Lienke continued. “The court would once again be made up of five conservatives and four liberals, and EPA’s best bet would once again be to convince Kennedy or Roberts to break ranks.”

Or, Lienke concluded:

Finally, it’s possible that Scalia’s seat will still be vacant when the Clean Power Plan reaches the Supreme Court. In that scenario, the most likely result is an even split between the four liberals and four remaining conservatives. And a 4-4 vote results in an automatic affirmance of the decision below, which, in this case, would be the DC Circuit’s. Of course, the DC Circuit hasn’t made its decision yet, and we can’t know for sure what it will be. But the panel of judges assigned to the case is generally viewed as favorable to the EPA, because two of the three were appointed by Democrats—one by President Clinton and the other by Obama himself.

Furthermore, the New York Times wrote on Tuesday, “If the Senate were to confirm whomever President Obama nominates to succeed Justice Scalia, one of the most conservative justices on the bench, the Supreme Court would probably become more sensitive to the imperative to combat climate change. That’s not just good news for the Clean Power Plan. It could open the door to more aggressive policies.”

Given these stakes, its not surprising that green groups are applying heavy scrutiny to potential nominees, such as federal appellate court judge Sri Srinivasan, who has emerged at the front of the pack of possible Scalia replacements.

The 48-year-old Indian-American has an “inspiring biography,” Politico reports on Wednesday. But, reporter Elana Schor continues, “his history of representing large corporations runs the risk of alienating Obama allies looking to gauge his still-developing record on key liberal priorities.”

Srinivasan’s work on cases “in which he defended ExxonMobil and the mining company Rio Tinto have raised particular objections from environmentalists,” Politico writes. “He also represented that enduring symbol of corporate excess, former Enron CEO Jeff Skilling, in the appeal of the executive’s fraud and conspiracy convictions.”

Jamie Henn, of 350.org, told Politico that Srinivasan’s work for Exxon was a “deeply disturbing” aspect of a “mixed” resume. Jane Kleeb, of Bold Nebraska, put it more starkly. “Any judge that sides with Big Oil over the American people has no place on our Supreme Court,” she said in an email to the publication.

Still, as Todd Aagaard, vice dean and professor at Villanova University School of Law, told Environment & Energy Publishing, “While all of the nominees would give environmental advocates a fair shot, I doubt any of them would automatically incline to favor the ‘pro-environmental’ side in a case.”

Yet “if you look closely at Scalia’s legacy on climate change, it’s hard to picture his replacement (even a Republican appointee!) harboring a more willful disregard for science,” meteorologist Eric Holthaus wrote at Slate on Monday.

“[C]limate activists, who are increasingly a major part of the electorate, now have a big boost to push for bolder promises from Hillary Clinton and Bernie Sanders,” Holthaus continued. “Backed by a Supreme Court that would presumably place greater value on the planet’s health, there’s nowhere to go but full-speed ahead in the race to reduce humanity’s carbon footprint.”