February 10, 2016
You may have missed it with all of the excitement of the New Hampshire primary elections, but the Supreme Court generated some major news on Tuesday by staying implementation of the Obama administration’s climate change regulation until the cases challenging it reach resolution.
The fact that the Court (specifically, the five conservative justices) stayed implementation of the regulation before the federal appeals court has even had a chance to review it doesn’t bode well for the regulation’s chances of survival – especially considering that this is the first time in history that the Court has taken such action. Although many legal commentators would have widely expected the Court to uphold the regulations prior to Tuesday, the Court’s order staying implementation discards all previously-held beliefs.
Further, since the case is still pending in the D.C. Circuit Court of Appeals (a decision isn’t expected until this fall), the Supreme Court won’t be able to review the matter until its next term – at which point, there will be a new administration in the White House, which may be unfriendly to the regulations.
This latest interference by the Court in action by the Obama administration (coming off the heels of the Court’s decision to review the landmark immigration case U.S. v. Texas last month) may signal a general hostility towards the slew of policy changes effected by the outgoing administration. We’ll certainly get a preview of the Court’s sentiments on President Obama’s actions through what we hear during oral arguments for U.S. v. Texas and the Court’s decision in June, but there’s nothing to say that the Court must rule similarly in both cases – assuming some underlying opposition to Obama’s policies is inspiring the Court into hearing these challenges to begin with.
But there’s more put at jeopardy by the Supreme Court’s unprecedented action here than President Obama’s domestic agenda: this past December, the U.S. was part of a monumental international agreement on climate change in which the almost 200 nations in attendance agreed to contain carbon emissions within their respective borders. And being one of the largest carbon emitters throughout history, one of the foundations of the Paris Agreement was the U.S.’s agreement to significant cut its own emissions.
If the Supreme Court strikes down Obama’s climate change rules, which contain robust carbon emission regulations, the Paris Agreement may itself fall apart. This isn’t because of some legal mechanism that would nullify the agreement, but rather because other countries with large carbon emissions (namely, China and India) would feel less compelled to fulfill their obligations of cutting carbon emissions if the U.S. is unable to fulfill its own.
In other words, the Court’s decision next term could throw a hard-fought international agreement out the proverbial window. While it may seem unthinkable that the Court would jeopardize something of such international significance, most thought it unthinkable that the Court would stay the implementation of the climate change reforms before the D.C. Court of Appeals even ruled on the case.
And surely those five justices who voted in favor of the stay are not so naïve as to be unaware of the wider repercussions of blocking Obama’s regulations when they decided to do so, which raises the question of whether throwing the Paris Agreement into turmoil even matters to the Court.
We’ll have quite a bit of a wait until the Court hears this challenge (which it almost assuredly will after the D.C. Circuit is done with it), but when the Court finally gets around to reviewing it, the case will undoubtedly be one of the most significant of the next term.