Politics & Policy

Justice Scalia and Climate Change

The states should stop work on the EPA’a climate agenda.

One of Justice Antonin Scalia’s last official acts may be among the most important of his distinguished career. Last week, he joined with four other justices to halt implementation of President Obama’s new carbon regulation for so long as it is under legal review — an unprecedented move to stay an unprecedented federal overreach into states’ energy decisions.

Titled by the administration the “Clean Power Plan,” the regulation would be one of the costliest ever, dramatically increasing electricity prices across the nation — all while producing essentially zero climate benefits, according to the Environmental Protection Agency’s own models.

Thanks to Justice Scalia and the four other justices who voted with him, Americans won the first battle against this reckless plan. But the fight is far from over. Even though the Supreme Court is not expected to issue a final ruling until at least 2017, the EPA is essentially flouting the stay order and encouraging states to continue developing their plans.

State officials — governors, legislators, regulatory agencies, public-utilities commissions, and utilities themselves — should reject the EPA’s offers of assistance. In fact, they should be issuing stop-work orders to prevent the regulation’s implementation until the courts have completed a full review. 

That’s especially necessary with a regulation as harmful and unlawful as this one, which would force a dramatic shift in electricity generation over a period of just 15 years. NERA Economic Consulting predicts compliance costs of up to $39 billion per year during the regulation’s implementation. Most of this burden would fall on families through higher electricity bills and higher prices on the products they use each and every day. In fact, NERA estimates the regulation would hike energy bills in each of the 47 states subject to the regulation. Annual electricity price increases would reach as high as double digits across 41 states, with residents of 28 states facing yearly cost increases greater than 20 percent.

Thanks to the Supreme Court’s stay, however, states can halt developing implementation plans at no risk to taxpayers. As EPA Administrator Gina McCarthy testified to Congress after the Court issued its stay, “Nothing is going to be implemented while the stay is in place.” In the unlikely event the regulation is eventually upheld, legal experts believe any new compliance deadline before mid-2018 would be extremely unlikely. 

In other words, there is simply no reason for states to make any decisions until these legal challenges are resolved. Acting now on a mandate that is anything but clean from a legal perspective risks irreversible changes to state electricity grids, burdening future generations with higher costs and harming American families, especially the poor.

This is not mere speculation. It’s exactly what happened with another recent EPA regulation: the Mercury and Air Toxics Standards (MATS).

Last June, the Supreme Court held that the EPA violated the Clean Air Act by refusing to consider the cost of such a sweeping mandate before it was issued. And no wonder: According to the EPA’s own internal estimates, utilities will pay $9.6 billion in annual compliance costs, with much of those costs being passed on to businesses and families through higher electricity rates.

Yet by the time the Court ruled on the regulation’s merits, it was too little, too late. Without a stay in place, and fearing substantial noncompliance penalties if the regulation was upheld, states and utilities began implementing the regulation while it was still being litigated in court. In other words, although the EPA lost the battle, it won the war through attrition, which the agency acknowledged. By the time the Supreme Court ruled in June, the MATS regulation had already shut down 61,000 megawatts of coal-powered electricity generation — enough to power 15.5 million homes.

Protecting their constituents from needless harm by stopping work on the carbon mandate is exactly what state officials should do.

Protecting their constituents from such needless harm by stopping work on the carbon mandate is exactly what state officials should do in this case. Governor Scott Walker (R., Wisc.) issued an executive order to that effect this week, while the Kansas State Senate took similar action the week before. Other state lawmakers should follow suit.

EPA supporters have argued that Justice Scalia’s death — which may shift the Court’s 5 to 4 conservative majority to a 5 to 4 liberal one — makes it more likely that the regulation will be upheld. Therefore, they argue, state officials should continue planning as if it will go into effect.

Not so fast. In the first place, Justice Scalia’s replacement may not be sworn in until next year. In the second place, the 29-state lawsuit has strong bipartisan support. Even Laurence Tribe, the esteemed Harvard Law School professor who taught constitutional law to President Obama, testified before Congress last year that the regulation is akin to “burning the Constitution of the United States.” Such broad, bipartisan opposition may yet give the other justices reason to reconsider.

The Supreme Court’s extremely rare decision to stay this carbon regulation speaks volumes about its legal viability — and Justice Scalia’s passing does nothing to change that. President Obama has spent seven years putting his agenda above the limits of his power, pushing the boundaries of the Constitution in the process. Now the Constitution is proving to be our best defense.

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