The US Supreme Court has just given the finger to the EPA’s Clean Power Plan, with implications for US democracy as well as the planet.
When Obama realised he couldn’t get an emissions trading system through Congress he turned to the Environmental Protection Agency (EPA) to regulate CO2 as a pollutant, which it duly did. The first legal challenge was to the validity of CO2 as a pollutant capable of being regulated by the EPA. The Supreme Court ruled that it was.
Then twelve coal producing and consuming states mounted another challenge to the EPA’a ‘Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units’, or Clean Power Plan. This time they claimed that coal powered generation plants were already regulated by the states and hence the EPA’s regulation was illegal. Think Progress claims that the Clean Power Plan was the most significant thing ever done by the US to combat climate change, and when fully implemented in 2030 would “avoid thousands of premature deaths and mean thousands fewer asthma attacks and hospitalizations in 2030 and every year beyond.”
The Supreme Court has just put a stay on the plan while the case is considered. At a minimum that will delay the plan until June 2017.
The case for a stay was supported by 29 states, alleging “irreparable [economic] harm” from implementing the plan, whereas 18 states filed for the EPA.
The challenge is seen as an attack designed to disable the presidency, with implications beyond climate change. However, it is also being argued that a federal agency cannot do anything that will incur costs down the track. This argument goes beyond regulations by federal agencies to laws passed by Congress, calling into question the purpose of a federal government.
The stay order was resolved on ‘party’ lines at 5-4 which represents the judges appointed by Republican and Democrat presidents. In breaking news Antonin Scalia has just died, so the Reagan appointee will be replaced by Obama.
Of course a new Republican president would take about five minutes to knock off the Clean Power Plan. The EPA itself might not survive.
It seems the supreme court and the presidency are the only chances the Democrats have of gaining access to the levers of power. Through gerrymandering the Republicans have what looks like a permanent lock on the House of Representatives, and “The vast majority — 70 percent of state legislatures, more than 60 percent of governors, 55 percent of attorneys general and secretaries of state — are in Republicans hands.” Only seven states have both a Democrat legislature and a Democrat governor, whereas 25 states are under unified Republican control. States administer electoral rolls and manage elections. All sorts of strategies are in play to ensure the vote come out the ‘right’ way. The Supreme Court has protected this undemocratic activity:
- If you don’t like gerrymandering, you should blame the Supreme Court. In the 2004 case Vieth v. Jubelirer, four conservative justices said that they would forbid federal courts from hearing challenges to partisan gerrymanders, and Justice Anthony Kennedy’s concurring opinion was only slightly less dismissive of these lawsuits. The result is that state lawmakers have been free to draw maps that entrench their party and lock out the other party, even though such maps violate voters’ First Amendment rights.
The Supreme Court is also complicit in the wave of “curbs on voting rights” that Yglesias notes in his piece. In a party-line vote, a 5-4 Supreme Court gutted a key provision of the Voting Rights Act, enabling many voter ID laws, gerrymandered maps and other legislation that would have otherwise been blocked to go into effect. Similarly, the Court in Crawford v. Marion County Election Board effectively greenlighted Voter ID laws — one of the most common examples of state laws that exclude voters likely to support Democrats. The Court’s plurality opinion cited concerns about in-person voter fraud to justify this outcome, even though the opinion could only find one example of such fraud occurring in the United States within the preceding 140 years!
Change would have to begin with changing the Supreme Court. At present we have a Clinton appointment who is 83, a Reagan appointment who is 79 and a Clinton appointment who is 77.
The next US presidential election is important for the future of American democracy as well as the planet.
Meanwhile some states, Republican and Democrat, have active climate mitigation programs, but insofar as costs and the market remain the leading factor in the switch to renewables, coal and gas will linger longer.
And Obama has included $47 billions worth of climate proposals in his budget served up to the Republic deniers in Congress. Some proposals have already been declared “dead on arrival”.