Climate Policy and the Power of a Single Vote

Published February 19, 2016

Climate Change Weekly #203

The death of Supreme Court Justice Antonin Scalia was a personal tragedy for his family and loved ones and a loss for any and all who love liberty. While Scalia’s influence on the Court and thus the country was felt across the range of issues the Supreme Court decided during his time on it, Scalia’s critical analysis and carefully crafted majority and dissenting decisions on environmental issues had an outsized impact on environmental policy and law.

Scalia’s death showed me how wrong I am in my curmudgeonly view one vote can’t make a difference. Scalia’s vote often did make the difference – most recently just days before his death – in protecting individual liberty against attempts to expand government power to impose the misanthropic, anti-democratic wishes of radical environmentalists on the public.

Among Scalia’s last decisions was in the majority who rejected the Obama administration’s Clean Power Plan, the president’s signature regulations to cut carbon dioxide emissions from the electricity sector. Had Scalia died just a few days earlier, a 4–4 split would have been likely, leaving in place the DC appellate court’s decision to allow the rule to go forward until all appeals are heard.

The decision by the Court to stay the rule was highly unusual and almost certainly attributable to concerns the majority had about the rule’s constitutionality and the costs it would impose on regulated businesses and the public. No doubt the Clean Power Plan decision was informed by a 2015 majority decision written by Scalia overturning another costly regulation, EPA’s Mercury and Air Toxics (MATS) rule.

As I note in a forthcoming Environment & Climate News article covering the Clean Power Plan litigation, petitioners cited the harmful economic impact MATS had on the power industry before the Supreme Court struck it down in June 2015. In his majority decision in the MATS case, Scalia wrote, “EPA strayed well beyond the bounds of reasonable interpretation in concluding that cost is not a factor relevant to the appropriateness of regulating power plants.”

In an interview I conducted for the story, Marita Noon, executive director of the Citizens Alliance for Responsible Energy, noted the MATS decision came too late to prevent damage to the energy system and higher costs for ratepayers.

With respect to the Clean Power Plan litigation, “The justices evidently looked at history and decided they didn’t want what happened with the Mercury and Air Toxics Standards to be repeated,” said Noon. “The MATS decision came too late to make any real difference, resulting in the premature closure of numerous power plants, lost jobs, and higher electricity prices, but [the Supreme Court’s] swift and sound decision to block the CPP prevents a reoccurrence of that costly fiasco.”

Over his nearly three decades on the court, Scalia wrote 10 majority opinions in environmental cases, helping to define contemporary legal understandings of the country’s major environmental laws. He impacted environmental law in three principal ways: 1) he helped define and delimit the concept of “standing” in environmental cases; 2) he made clear regulation or laws that reduce or destroy peoples’ property rights or property values in order to promote environmental goals amount to takings, meriting compensation; and 3) he established costs have to be considered in most instances when writing environmental rules, and it is not legitimate to impose huge costs on society for minimal benefits.

In three majority opinions, beginning with 1992’s Lujan v. Defenders of Wildlife, Scalia established strict limits on the ability of environmental groups to show they had standing to challenge environmental laws or regulations in court. Standing refers to whether the party bringing the lawsuit can show it is directly “injured” by the policies being challenged. Before Scalia’s Lujan decision there were no definitive guidelines for how to establish standing in environmental cases.

Beginning with 1987’s Nollan v. California Coastal Commission, Scalia proved to be a stalwart defender of property rights. Writing for the majority Scalia said California had to compensate coastal property owners if it wished to force them to maintain public pathways for beach access. In 1992’s Lucas v. South Carolina Coast Council case, Scalia essentially coined the term “regulatory taking,” meaning a regulation limits a property owner’s use of his property so severely, or diminishes the value of his property to such an extent, it amounts to a taking, similar to an exercise of eminent domain to promote a public purpose, and warrants compensation. In Lucas, a South Carolina law aimed at protecting islands from erosion prevented a landowner from building houses on a barrier island. Writing for the majority, Scalia held the state law effectively rendered the landowner’s property valueless, amounting to a taking.

Scalia first wrestled with the topic of human-caused climate change in 2007 in Massachusetts v. Environmental Protection Agency. In that case 12 states and several cities sued EPA to force it to regulate carbon dioxide and other greenhouse gas emissions from automobiles as pollutants. In 2003, EPA had determined it lacked authority under the Clean Air Act to regulate greenhouse gases for climate change purposes. The agency further determined even if it did have such authority, it would decline to set emissions standards for vehicles. Lower courts upheld EPA’s discretion, but in a 5–4 decision, the Supreme Court ruled if EPA determined greenhouse gas emissions endangered human health or the environment, it must regulate them.

Scalia was on the losing side in this instance. In his dissent, he first argued the plaintiffs lacked standing to challenge EPA’s 2003 determination it lacked the authority to regulate greenhouse gas emissions. Secondly, and contrary to the majority’s finding, Scalia argued nothing in the Clean Air Act requires EPA to rule whenever a petition for rulemaking is filed. Scalia wrote, the “statute says nothing at all about the reasons for which the Administrator may defer making a judgment.”

Of course, once the door was opened by the Court, EPA leapt through with both feet, issuing the endangerment finding it later used to justify the Clean Power Plan. This leaves us where we stand today, on the edge of a regulatory abyss with Scalia’s steady hand no longer firmly on the tiller.

Justice Antonin Scalia’s death could result in a seismic shift for the worse in environmental law. I didn’t know Justice Scalia, but I mourn his loss and will miss him on the Court.

— H. Sterling Burnett

SOURCES: U.S. Supreme Court; Justia; Justia; and Findlaw


Paris climate deal to cost more than $12 trillion … BP estimates carbon emissions growth will shred Paris climate deal … Fracking, not renewables, is reducing carbon dioxide … More evidence increasing carbon dioxide greens the Earth


A new report by Bloomberg New Energy Finance and Ceres finds to hold warming under 2°C, the target set in the Paris climate deal, the renewable energy industry will require an investment of $12.1 trillion, about $484 billion per year, over the next 25 years. As a result, Bloomberg/Ceres says wind farms, solar facilities, rooftop solar panels, and other alternative energy sources will have to undergo a rapid, unprecedented expansion, requiring increased subsidies and mandates for the renewable energy sources and legal restrictions on fossil fuels. “Policymakers worldwide need to provide stable, long-lasting policies that will unleash far bigger capital flows,” said Sue Reid, vice-president of climate and clean energy at Ceres.

Bloomberg/Ceres estimates are likely low as they exclude expensive energy efficiency measures. According to an International Energy Agency estimate, when energy efficiency measures are included the world would have to spend $16.5 trillion between now and 2030 alone to meet the Paris goals.

Putting those numbers in perspective, the U.S. government currently owes just under $19 trillion in debt, excluding entitlement spending like Medicare/Medicaid and Social Security.

SOURCES: Bloomberg and Daily Caller


A new report by British Petroleum (BP) shows, despite continuing gains in energy efficiency and forced expansions of renewable power sources, economic growth in China, India, and other developing countries is swamping carbon dioxide reductions in Western countries and is expected to do so for decades into the future. According to BP’s report, “Despite the slowdown in emissions growth, the level of carbon emissions continues to grow, increasing by 20% between 2014 and 2035.” BP projects increasing emissions from fast-growing nations will overwhelm any emissions cuts made by the United States and other developed countries.

SOURCES: Daily Caller and British Petroleum


A new study by Oren Cass, senior fellow at the Manhattan Institute, finds despite massive subsidies and state mandates, renewable energy sources remain a small part of America’s energy supply. Investment in the industry has been flat for almost five years domestically and globally. Even as GDP grew 7.3 percent since 2007, Cass notes, U.S. carbon dioxide emissions fell 9.7 percent from their 2007 peak of 6,001 megatons of carbon dioxide (MtCO2) to 5,417 MtCO2 in 2015.

Improvements in the efficiency of electricity use, the amount of electricity used per dollar of GDP, accounted for 20 percent of carbon dioxide emissions reductions. The fracking revolution, resulting in a shift in electricity production from coal to natural gas, accounted for 19 percent of the decline. By contrast, increased solar power production is responsible for just 1 percent of the decline in U.S. carbon dioxide emissions. For every ton of carbon dioxide cut by solar power’s substitution for coal, the switch to natural gas has removed 13 tons of carbon dioxide. Globally, the amount of carbon dioxide reduced by solar power’s expansion in the United States equaled less than four hours of global carbon dioxide emissions in 2013.

SOURCE: Manhattan Institute


A new study in the journal Scientific Reports shows enhanced levels of carbon dioxide are driving global dryland greening in recent decades. Drylands – zones where mean annual precipitation is less than two-thirds of potential evaporation – make up the largest part of the global terrestrial ecosystem. After analyzing data from 45 studies covering eight countries, researchers from Indiana University-Purdue University Indianapolis concluded the most likely source of the greening of dryland areas around the world is rising levels of atmospheric carbon dioxide. Regional scale analyses using global satellites show extensive areas of drylands greening in northern China, the Mediterranean, the Middle East, Mongolia, the Sahel and South America.

The authors ruled out other potential drivers for the greening, concluding only increased carbon dioxide levels provided a global explanation for changes to dryland vegetation. Under increased carbon dioxide levels, plants use water more efficiently, reducing the amount of moisture lost during respiration and storing more water in the soil. The study found elevated carbon dioxide enhanced soil water levels in drylands by 17 percent.

SOURCE: Watts Up With That

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